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Evidence
South Texas College of Law Houston
Holland, Robert F.

Evidence Outline

I. Mode and Order of Presentation of Evidence

a. Control by the Court

i. FRE 102. Purpose and Construction

These Rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

ii. FRE 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

iii. FRE 611(a). Mode and Order of Interrogation and Presentation

(a) Control by the Court. The court shall exercise reasonable control over the mode and order or interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

iv. U.S. v. Reaves

1. Facts: The Prosecution intended to bring forth voluminous tax forms as evidence without making any effort to organize them or present them in a coherent manner. Much of the evidence was duplicative and a waste of the court’s time.

2. Holding: The Court has the right to set time constraints to move trials along. The theoretical basis for this power comes from FRE 403 and 611(a). Courts can also limit the number of witnesses called if they are also duplicative.

3. See notes

v. FRE 614. Calling and Interrogation of Witnesses by Court

(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(b) Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.

(c) Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

1. Texas doesn’t like this rule.

b. Leading Questions

i. FRE 611(c). Mode and Order of Interrogation and Presentation

(c) Leading Questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness’ testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

ii. Straub v. Reading Co.

1. Facts: Attorney for P continuously asked leading questions to its witnesses on direct examination, disregarding D’s objections and instruction by the court.

2. Holding: Where the control of the occur is lost or at least palpably ignored and the leading questions run the length of the trial that results in a warped version of the issues heard by the jury, a judgment based on that evidence must be set aside.

a. However, when only an isolate remark in the ardor of advocacy, and in the excitement of trial is given, it is not ground for reversal.

b. There must be calculated sustained improper conduct producing biased issues as they went to the jury.

iii. When are leading questions ok?

1. Rule 611(c) sets out four exceptions:

a. When necessary to develop the witness’ testimony.

i. Ex. preliminary matters, child, mentally retarded

b. When a party calls a hostile witness.

i. Takes more than mere identification with a party.

ii. Must be demonstrated either by contemptuous or surly conduct, by refusal to answer questions, or by consistent hedging on answers.

c. When a party calls an adverse party.

i. On cross, you should lead, unless you have weighed the consequences and intentionally decide not to do so.

d. When a party calls a witness identified with an adverse party.

iv. Cross-Examination

1. United States v. McKenna

a. Facts: Attorney for D attempted to cross-examine his witness with leading question, claiming that it was his constitutional right under the 6th Amendment. The judge instructed him that leading questions were not allowed unless the witness demonstrated some hostility, which he did not. D attorney voluntarily rested his case against witness in protest (apparently trying to invite error into the court.)

b. Holding: A judge may instruct an attorney not to use leading questions on cross-examination unless the witness is openly hostile. This is within his power and is not a violation of the wording of FRE 611(b).

2. One co-defendant can cross-examine another co-defendant only with nonleading questions.

3. You would obviously want to ask narrow questions on cross.

c. Scope of Cross-Examination

i. FRE 611(b). Mode and Order of Interrogation and Presentation.

(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

ii. English Rule (Texas) – Can cross-examine witness on any matter relevant to any issue in the case.

iii. American Rule (Federal courts) – FRE 611(b)

iv. Douglass v. State

1. Facts: D took the stand to defend him against the murder of two men. Claimed self-defense and insanity. Prosecuting attorney attempted, in cross-examination, to bring forth letters written by D that would impeach his testimony of self-defense and insanity. D’s attorney had not brought up the letters on direct.

2. Holding: Arizona follows the American Rule that states that only those issues that were brought up on direct may be rehashed on cross. Although the court believes that the rule should be changed to the English model, it concludes that the evidence may still be used because they were related to the truth of D’s defenses that he had previously offered.

v. United States v. Segal

1. Facts: D was charged with bribery. Prosecution used excerpts of tapes of transactions and transcripts to prove D’s guilt. On cross, D’s attorney was not allowed to replay some of the tapes or to play parts of the tapes that were not played by the prosecution.

2. Holding: In general, there is no error in the court’s suggestion that the transcript be used in reviewing material that had once been played.

a. However, the court also prohibited D from using transcripts or playing parts of a recording that had not been heard during direct examination. This restriction was based on the premise that cross-examination should not exceed the scope of direct and that D was free to present the proffered evidence in their case. We think this limitation unduly narrowed the scope of cross-examination and hindered proper presentation of the defense case.

b. If a matter has been raised on direct, generally cross must be permitted. Moreover, questioning of the witness that tests his perception, memory, or otherwise tends to discredit him is proper.

c. The scope of the direct examination is to be measured by the subject matter of it rather than by specific exhibits that are introduced at that time.

3. Rule of completeness: If someone reads part of a transcript, then you can read the whole.

4. Credibility issues can be brought up on cross.’

d. Problem 1-1

II. Objections and Offers of Proof

a. FRE 103. Rulings on Evidence

(a) Eff

the trial court sharply calling the ground relied upon to the attention of the court and on appeal the objection interposed must be relied upon.

a. Objections to evidence must be specific, and no reversal can be had except upon the ground specifically stated.

3. An expert witness may properly be asked his opinion as to an ultimate fact.

ii. Cannot raise a different justification for an objection for the first time on appeal.

iii. Bridges v. City of Richardson

1. “An objection that proffered evidence is immaterial and irrelevant is not sufficient to preserve right of review of error committed in admitting it…when the evidence is not relevant to any issue in the case and can have no material bearing thereon, a general objection that is immaterial and irrelevant is sufficient to preserve right of review of error committed in admitting it.

iv. FRE 105. Limited Admissibility

When evidence that is admissible as to one party of for one purpose but not admissible to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.

g. Consequences of Failure to Object with Specificity

i. Owen v. Patton

1. Facts: On three separate questions, D’s attorney asked highly prejudicial questions towards various witnesses concerning P’s friends. P’s attorney, however, did not object to the questions on any occasion.

2. Holding: While the court agrees that the inquiries amounted to improper cross-examination upon an irrelevant matter, without an objection, a motion to strike, a request for special instructions or a motion for mistrial, the court was not called upon to make a ruling that could result in error for failure to accommodate P’s request.

a. Thus, we are not justified in granting a new trial even though we believe that D tactics here bordered on misconduct.

b. Without an objection and a proper request for relief, the matter is waived and will receive no consideration on appeal absent plain error.

i. Preserving an issue is a matter of making a timely objection to the trial court and clearly stating the grounds for the objection, so that the trial court as an opportunity to prevent or correct the error in the first instance.

3. Arguments for reasoning:

a. The reviewing court cannot be sure that the appellant did not consent to the error.

b. In most cases, it is simply unfair to reverse a trial court on the basis of an issue that it has not had an opportunity to consider.

ii. Plain vs. Harmless error:

1. Harmless error: Any error, defect, irregularity or variance that does not affect substantial rights shall be disregarded.

2. Plain error: Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the Court.

iii. Must make the judge give an answer to an objection to preserve the error.

h. Offer of Proof

i. United States v. Winkle
Facts: D was not allowed to testify his hearsay evidence that he intended to use to im