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Texas Trial and Appellate Procedure
South Texas College of Law Houston
Wilks, William Lee

Evidence—Wilks—Fall 2011
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 the 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.  Mode and Order of Interrogation and Presentation.
1.       (a) Control by the Court.  The court shall exercise reasonable control over the mode and order of 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.      United States v. Reaves.  The court was allowed to limit the prosecution’s case-in-chief to 10 days.  Under FRE 403, the ct may set time limits to stop overly cumulative evidence.  FRE 611 commands to ct to exercise control over mode of presenting evidence for ascertaining the truth and not to waste time.  These limits maintain attorney autonomy in presenting his case.
                                                  v.      Objections derived from FRE 403 and 611.
1.       Q calls for narrative response/indefinite/lacks specificity
2.       Nonresponsive
a.        If objectionable answer was prejudicial, ask the Ct to strike the objectionable answer
3.       Assumes fact not in evidence
4.       Compound Q
5.       Cumulative/Asked and Answered
6.       Confusing
7.       Misstates the Evidence
8.       Argumentative
9.       Badgering the Witness
                                                vi.      FRE 614.  Calling and Interrogation of Witness by Court.
1.       (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.
2.       (b) Interrogation by court. – The court may interrogate witnesses, whether called by itself or by a party.
3.       (c) Objections. – Objections to the calling of witnesses by the court or to the interrogation by it may be made at the time or at the next available opportunity when the jury is not present.
b.       Form of Questions to the Witness
                                                   i.      FRE 611.  Mode and Order of Interrogation and Presentation.
1.       (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.      A leading question is one which clearly suggests the desire response.  E.g., “isn’t it true that . . .”; Qs that ask for yes/no answer.  Q can’t be leading if it starts w/ who/what/when/why/how.
                                                iii.      Direct Examination
1.       Straub v. Reading Co.  The ct reversed where proof of P’s claim in trial ct was put in to an unconscionably large extent by leading questions, and D couldn’t constantly object b/c of prejudice to the jury.
2.       Leading Qs allowed on direct:
a.        Preliminary matters not of material importance
b.       If witness has having difficulty communicating
c.        If witness’s recollection has been exhausted
                                                iv.      Cross Examination
1.       United States v. McKenna.  The ct didn’t allow leadings Qs of a witness until he was established as adverse/hostile.  Defense counsel rested.  HELD:  under FRE 611, the ct has discretion to req a party cross-examining a friendly witness to employ non-leading Qs.
c.        Scope of Cross-Examination
                                                   i.      FRE 611.  Mode and Order of Interrogation and Presentation.
1.       (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.
2.       Compare, TRE 611(b).  A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.
                                                  ii.      United States v. Williams.  D was charged w/ being a felon and carrying a weapon.  The trial ct told D that if he tried on the fannie pack, he’d open himself up to cross (b/c trial ct held the demo was “testimony”).  On direct, D testified that he didn’t have the gun.  HELD:  D’s testimony opened him up to cross about past convictions to impeach his testimony.
                                                iii.      The American Rule:  Cross-Examination w/in the Subject Matter of the Direct
1.       Macaulay v. Anas.  In this med mal case, P argued that P’s 2d doctor (fact witness) went beyond the scope of cross when he testified to the std of care of the 1st doctor.  HELD:  when witness testified to the screws being malpositioned and misplaced, he created an inference of negligence.  Thus, this was fair game on cross.
                                                iv.      Note:  if you forget something on direct, ask the ct for permission to ask an omitted question.
II. Objections and Offers of Proof
a.        FRE 103.  Rulings on Evidence.
                                                   i.      (a) Effect of erroneous ruling.  Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
1.       (1) Objection.  In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
2.       (2) Offer of proof.  In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
3.       Once the ct makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
                                                  ii.      (b) Record of offer and ruling.  The court may add any other or further stmt which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.  It may direct the making of an offer in question and answer form.
                                                iii.      (c) Hearing of jury.  In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
                                                iv.      (d) Plain error.  Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
b.       Contemporaneous Objection
                                                   i.      United States v. Spriggs.  Defense counsel argued on appeal that a witness’s testimony was hearsay.  But in the trial court, counsel “raised concerns” at a bench conference after the alleged hearsay, and the next day asked to strike the testimony.  HELD:  counsel failed to preserve the argument for appeal because he didn’t lodge a contemporaneous objection.  Plain error didn’t apply b/c the error didn’t seriously affect a substantial right.
                                                  ii.      Procedure for Making an Objection
1.       Opponent of the evidence stands to address the ct.
2.       Opponent of the evidence says “Objection” followed by a brief description of the basis for the objection, such as “hearsay” or “lack of foundation.”
3.       Proponent of the evidence may respond briefly to the objection.
4.       If argument is req’d and the case is being tried to a jury, the argument should be held outside of the presence of the jury.
5.       The court will rule on the objection, although often the court rules summarily after hearing only the objection.
6.       If the court sustains the objection, the proponent should make an offer of proof to preserve the matter for appeal.
                                                iii.      Motion In Limine.  Objection made pretrial or during a trial before a witness is called
1.       Luce v. United States:  D who objects to being impeached with a prior conviction (where the court overrules the objection in limine) must take the stand and be impeached in order to preserve a claim of error on appeal; it is not enough to object in limine and then fail to testify.
2.       United States v. Griffin:  if a pretrial ruling is dependent on an event occurring at trial, there is no right to appeal the ruling if the event never occurs (e.g., if ct overrules as to a question and atty never asks the question)
3.       Ohler v. United States:  a party who introduces evidence of a prior conviction on direct examination forfeits her right to appeal an in limine ruling that he evidence would be admissible at trial.
                                                iv.      A renewed objection or offer of proof is not req’d if the trial judge’s initial ruling was “definitive”
                                                  v.      An objection must be made at the earliest practicable opportunity for it to be considered timely (e.g., btwn the question and answer)

Outside Influence”
                                                                                                                           i.      Jurors heard/read prejudicial information not admitted into evidence
                                                                                                                          ii.      Bailiff commented (to the jury) on the defendant
                                                                                                                        iii.      Bribe offered to juror
                                                                                                                        iv.      Unauthorized juror experiments
                                                                                                                          v.      Threats to a juror or a juror’s family
                                                                                                                        vi.      Visiting the crime scene
c.        Voir Dire.  FRE 606(b) applies to juror deliberations, but does not preclude an inquiry into whether a juror lied during voir dire.  Accordingly, evidence could be presented about the juror’s lies on voir dire in an attempt to overturn a verdict.
                                                iv.      Judges
1.       FRE 605.  Competency of a Judge as Witness.  The judge presiding at the trial may not testify in that trial as a witness.  No objection need be made in order to preserve the point.
a.        In Kennedy v. Great Atl. & Pac. Tea Co., the judge’s law clerk went to the accident scene and reported to the judge.  On appeal, the ct held that the testimony of the clerk, who was so closely associated with the judge, distorted the proceedings.
b.       The court reversed in Lillie v. United States because the trial judge had viewed the accident scene.
c.        Foundational Competence
                                                   i.      The Oath
1.       FRE 603.  Oath or Affirmation.  Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.
2.       Religious Convictions:  Substitutes for the Oath
a.        Ferguson v. Commissioner of Internal Revenue.  The trial ct dismissed P’s claim after the ct denied her request to use an alternative to an oath or affirmation.  HELD:  the ct should’ve allowed her to take the alternative oath, attaching a sentence where the witness recognizes the penalty of perjury.
3.       Children:  A Minimal Standard
a.        Capps v. Commonwealth.  D argued that the trial ct abused its discretion in allowing a 5 ½ year old to testify.  HELD:  it is the duty of the trial ct to carefully examine the witness to ascertain whether she is sufficiently intelligent to observe, recollect and narrate the facts and has a moral sense of obligation to speak the truth.
b.       Even if a child is incompetent to testify, the child’s out-of-court statements might still be admissible under an exception to the hearsay rule (e.g., excited utterances)
4.       The Competent Incompetent:  Prior Determinations
a.        United States v. Phibbs.  D challenged witness’ testimony.  One witness was previously found incompetent to stand trial, had auditory delusions and spent time in mental health facilities.  The other suffered from confusion, agitation, paranoia and hallucinations.  HELD:  the trial ct d/n err in failing to conduct a preliminary examination of the witness’ competency.  There are no mental qualifications for testifying as a witness.  Trial ct d/n find witnesses incapable of understanding their oath, and d/n find insufficient capacity to perceive events, remember them and describe them for the benefit of the fact-finder.
b.       In United States v. Lightly, trial ct was rev’d where it d/n allow witness to testify b/c he was found criminally insane and incompetent to stand trial and had hallucinations.  A treating physician indicated that the witness had sufficient memory, understood the oath, and could communicate what he saw.