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Evidence
South Texas College of Law Houston
Reed, Harry L.

EVIDENCE OULTINE
Dean Read
I)
A) Purposes of the Trial: Search for truth and End controversy
1) Search for Truth:
(a)
(i)
(ii)
(iii)
Þ
The lawyer must choose his resources carefully
Energy: we cannot use everyone who has knowledge in the case.Memory: different for everyone. Time: causes memory to fade, witnesses may die, exhibits get lost, etc.
(b)
(i)
(ii)
There are collateral policies: Privileges; 5th Amendment.Very intimidating and scary for the witness
(c)
(i)
(ii)
Attys job is to use the best approximate method to complete the picture.Some pieces will always be missing
B/c of these limitations, one very rarely has a perfect recreation of the eventNature of the ProcedureThere are limitations that make this process flawed
2) End Controversy
(a)
(b)
(c)
(i)
Þ
Þ
Þ
Most do not like the government too involved.Freedom of conscience,Economic security
(ii)
A jury decision is far more acceptable to the public than a governmental ruling.B/c the US has people from all over the world who come here for
US clings to the jury trial- Read Theory: This provides finality for the public regarding dispute.
B) the dirty little SecretJury Trial Opportunity
1)
(a)
(b)
We doubt their abilityWe don’t know if we can trust them
2)
(a)
(b)
(c) This is what created Evidence.
85% of the individual rules deal with admissibility (Whether or not the judge will allow the jury to hear the matterTo avoid wrong verdictsTo avoid prejudice
C) what is evidence?
1)
2)
3)
(a)
(b)
(i)
(ii)
The jury judges the facts based on the standard the judge gives them.The judge governs the case
In a jury trialThe rules are a little more relaxed in a bench trial.
D) codes
1) Model Rules of Evidence
2) Uniform Rules
3) CA Evidence Code
4) Federal Rules of Evidence
– this was the last effort, and is used extensively.- this was the 2nd model (was a form of the uniform rules)- writers of the model rules were also the creator (adopted by the Virgin Islands and Kansas)- 1st body of evidence rules and procedure collection (no one adopted this)The same rules of evidence apply in a bench trial as well as a jury trial.15% attempt to control what the jury does with the information they have heard or once they hear it.
We however, have the power to control what the jury hears.We are frightened of the jury b/c: The public trial exists so the public can buy into the notion that the process is as fair and just as possible for the client.recreating what happened in a past historic event.
II)
There are certain things that are so true, that the judge will take a fact issue and treat it like a law issue.
The judge will use the fact to tell the jury what something is.
Judicial notice may take place at any stage in the proceeding. [FRE 201(f)] Note: the judge’s personal knowledge of the facts is immaterial.
o
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Damn Fool Facts or
§
Almanac Facts.
A) Adjudicative Facts:
1) Damn Fool Facts (201(b)(1))-
(a)
(b)
(c) Community
(i)
(ii)
Also means a group that is familiar with a certain trade, market, etc.
Community is not only a geographic areaDoes away with evidenceDoes away with proof
2) Almanac Facts (201(b)(2))-
B) Discretionary v. Mandatory
1) Discretionary (201(c))
2) Mandatory [201(d)] C) Instructing the Jury (201 (g))
1) Civil action:
2) Crim. Action
3) Note:
(i)
(ii)
Though facts over time may change from being a certainty, the ct can only use the best information that they have at the time.Judges do not like to deny jury the ability to decide b/c they don’t police the lawyers enough.
D) Judicial Notice of the Law
In most courts, federal and state laws and official regs are subject to mandatory judicial notice.
Ct may take notice of municipal codes, congressional resolutions and laws of foreign countries, verifiable facts, however, they are not required to do so.
1)
(a)
(b)
(c)
All foreign and maritime lawAll sister statesAll the laws of their jx
2)
(a)
(b)
Usually involves some obscure fact.This is very rare
E) Judicial Notice of Legislative Facts
1)
2)
3)
 
 
How courts interpret the meaning of the statutes.Basically whether nor not the legislature had the power under the policing act to create or exercise the law. The court looks at the intent and history of the legislature
Has nothing to do with judicial notice (Phrase was coined by Kenneth Davis in an article.)Sometimes when a judge cannot find the law, they treat it as a fact and send it to the jury. All states have a form of law that requires judicial notice
These facts are not decided by the jury: ct will instruct the jury that it may, (but is not required to), accept any judicial fact as conclusive.
– judge must take JN of the fact once it is requested by the parties and the fact satisfies FRE 201(b). ct will instruct the jury to accept judicially noticed facts as conclusive.
– judge may take JN of a fact whether it is requested by the parties or notFacts capable of positive verification through readily accessible sources of indisputable accuracy. Facts being judged in the trial process [FRE 201]Facts known w/ certainty by all reasonably intelligent persons in the community.Only thing that defines judicial notice is whether the facts are either
o
o
Note: the appeals ct must take judicial notice of any fact that the trial ct properly noticed.May take place for the 1st time in the appeals process
III)
A) Classic Definition
1)
2)
(a)
(b)
It is not probative of the proposition to which it is directed (does not prove the issue you are trying to prove in the lawsuit); ORB/c the proposition is not provable in the case (issue the item proves is not an issue in the case)
3)
4) Note:
(a) E.g
(b)
Irrelevant evidence is inadmissible.. Hearsay, and privileges
B) The Relevancy Two-Step (LEARN THIS!)- Judge must go through both steps
1) Step 1: Does it Tend to Prove? [Logical Relevancy (test of human logic) – FRE 401]- does the item move you to establish the issue or not
evidence that is relevant must also clear the other evidence obstaclesOne must focus on the issue that one is trying to prove (properly framing the is

outweighs the probative value.
3) Limitations on Trial Judge
(a) Ballou- a trial judge has incredible discretion to determine if a 403 risk outweighs probative value, however that discretion is not absolute (must be clear abuse of discretion to be reviewable on appeal, thus are rarely reversed)
(b) Old Chief-
convicted felon who is later charged w/ another fight, both charges are similar (in order to charge w/ the new crime must show that he has committed a felony); prosecutor wanted to show all details; SC held that if it is just a status and D is willing to concede he committed a felony and the crimes are similar, prosecutors can not describe the event
4) Dancing With Rhythm:
(a)
(b)
(i)
Þ
Þ
The harder it is to find the issue as substantially outweighing its value b/c of risk of harm.The closer the item is to proving an issue, the more probative the item is
The power of the trial judge is hugely fundamental in cases at the trial level.
(c) Knapp v. State- D claimed that he heard that sheriff beat an old man to death, so when sheriff came to get him, D shot him. D does not know who told him. P wants to show that the man who apparently was beaten to death died from natural causes. Ct held that showing that old man died of natural causes in order to show that D was lying (“great tendency to prove he was lying”)
(d) Sherrod v. Berry- police officer shot a guy he thought was pulling a gun on him; trial judge let it in that there was no weapon, appellate ct held that this was wrong b/c what was important was what in the police officers head at the time (decided differently than Knapp)
Fundamental power of the trial judgeRisk of Harm must substantially outweigh the probative value.
How to balance the test.
FRE stated that real materiality so rare, that it is now obsolete (so don’t worry about it)
RELEVANCY: Discretionary rule for judges. JUDICIAL NOTICE (201)- cts recognition of a fact as true w/o requiring formal presentation of evidenceGENERAL BACKGROUND
(e) Kennedy Assassination- K was assassinated by LHO, when they were moving LHO from Dallas jail JR shoots LHO. What if there was evidence that LHO was innocent, and at the JR murder case (JR claims that he should get manslaughter b/c he was overcome w/ grief). If P wanted to show how the Pres really died and that LHO was innocent (would argue Knapp), however this has nothing to do with the present case, thus would be unfairly prejudicial, side issue, and enormous delay