Transcript EVIDENCE - University of Houston Law Center

INTRODUCTION AND
CHAP. 1
P. JANICKE
2011
THE SUBJECT IS:
• A BODY OF (MOSTLY
EXCLUSIONARY) RULES, TELLING
LAWYERS WHAT THEY CAN AND
CAN’T DO TO ESTABLISH FACTS AT
TRIAL
• “LAW” POINTS ARE ESTABLISHED
DIFFERENTLY; EVIDENCE DEALS
WITH FACTS
2011
Evid. Intro. + Chap. 1
2
USUALLY ONLY PARTIES
OFFER EVIDENCE
(WITH A FEW EXCEPTIONS TO BE NOTED)
• WHO ARE THE PARTIES?
– CRIMINAL CASE: THE STATE; THE
DEFENDANT
– CIVIL CASE: PLAINTIFF; DEFENDANT
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Evid. Intro. + Chap. 1
3
WHO ARE NOT PARTIES
(AND CANNOT OFFER
EVIDENCE) ?
• A WITNESS
• A VICTIM
• RELATIVES OF A VICTIM
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Evid. Intro. + Chap. 1
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HOW THEN DO WITNESSES
GET HEARD AT TRIAL?
• A PARTY CALLS THEM AND “OFFERS”
THEIR TESTIMONY IN EVIDENCE
• WITNESS IS SAID TO BE “GIVING”
EVIDENCE, BUT NOT OFFERING OR
INTRODUCING IT
• MR. FASTOW GAVE EVIDENCE AT THE LAYSKILLING TRIAL
• HE DID NOT INTRODUCE ANY EVIDENCE
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Evid. Intro. + Chap. 1
5
HOW DO PARTIES “OFFER”
EVIDENCE?
FOR TESTIMONIAL EVIDENCE:
• A PARTY’S LAWYER ASKS A QUESTION
[EVIDENCE HAS BEEN “OFFERED” BY
THAT PARTY]
• THE WITNESS ANSWERS [EVIDENCE HAS
BEEN “GIVEN” BY THE WITNESS AND
“INTRODUCED” BY THE PARTY]
• THE ANSWER IS “IN EVIDENCE” UNLESS
THE JUDGE SAYS OTHERWISE
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“OFFERING” EVIDENCE
FOR DOCUMENTARY AND TANGIBLE
EVIDENCE:
PARTY’S LAWYER HAS DOCUMENT MARKED
BY CLERK FOR ID
1.
•
2.
LAWYER ASKS QUESTIONS TO A WITNESS
ABOUT IT
•
•
2011
CLERK SAYS OUT LOUD: “THIS WILL BE P’S EX. 7
FOR ID”
CALLED “LAYING THE FOUNDATION”
MAINLY TO PROVE AUTHENTICITY
Evid. Intro. + Chap. 1
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3. LWYR. OFFERS DOC./ THING IN
EVIDENCE
• SAYS “I offer p’s EX. 7 for ID into
evidence”
4. JUDGE SAYS THE MAGIC
WORDS:
• “Ex. 1 for identification will be
received/admitted in evidence”
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RELEVANCE AND
COMPETENCE
RELEVANT:
• THE PIECE OF EVIDENCE MAKES A
DISPUTED FACT MORE LIKELY OR LESS
LIKELY TO BE TRUE THAN IT WAS A
MINUTE BEFORE
IRRELEVANT:
• DOESN’T MOVE THE SCALE AT ALL,
EITHER WAY (PRETTY RARE)
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• EASY TO ARGUE FOR RELEVANCE
TODAY
• THE REAL COURTROOM ISSUE IS:
WHETHER THE AMOUNT OF RELEVANCE
IS ENOUGH IN THE JUDGE’S MIND TO
OVERCOME:
– TIME NEEDED TO PUT IT IN
– POSSIBLE “UNFAIR PREJUDICE” OR
CONFUSION OF THE JURY
– THESE ARE KNOWN AS “COUNTERWEIGHTS”
TO RELEVANCE
RULE 403
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Evid. Intro. + Chap. 1
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COMPETENT
• JUST ANOTHER WORD FOR
“ADMISSIBLE.”
• MEANING: IT COMPLIES WITH ALL
THE RULES OF EVIDENCE
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FEDERAL RULES
• APPLY IN FEDERAL COURT TRIALS
– BUT NOT SENTENCING, BAIL
HEARINGS, ETC.
• HAVE BEEN THE MODEL FOR
STATES’ RULES, INCLUDING TEXAS
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TEXAS RULES
• UNTIL 2000 WE HAD SEPARATE
CRIMINAL AND CIVIL RULES
• NOW COMBINED
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LAYOUT OF A COURTROOM (A)
HIGH UP
BENCH (JUDGE)
WITNESS
CLERK AND REPORTER
PODIUM
COUNSEL WITHOUT
BURDEN OF PROOF
JURY
COUNSEL WITH
BURDEN OF PROOF
RAILING
SPECTATORS
( FOR D)
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SPECTATORS
(FOR P)
Evid. Intro. + Chap. 1
14
LAYOUT OF A COURTROOM (B)
HIGH UP
BENCH (JUDGE)
WITNESS
CLERK AND REPORTER
PODIUM
JURY
COUNSEL WITH
BURDEN OF PROOF
(P)
COUNSEL WITHOUT
BURDEN OF PROOF
(D)
RAILING
SPECTATORS
( FOR P)
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SPECTATORS
(FOR D)
Evid. Intro. + Chap. 1
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HOW “THE RECORD” IS MADE
• AT LEAST TWO KINDS OF “RECORD”:
– OF THE ENTIRE CASE
• KEPT BY THE CLERK
• INCLUDES PLEADINGS, MOTIONS,
ETC.
– OF THE TRIAL
• TESTIMONY AND COLLOQUYS
TAKEN DOWN BY THE REPORTER
• DOCUMENTARY AND TANGIBLE
EVIDENCE KEPT BY THE CLERK
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•
COLLOQUYS:
1. AT THE BENCH
2. IN CHAMBERS
3. IN OPEN COURT WITH THE JURY
ABSENT
•
EACH PARTY IS ENTITLED TO HAVE ALL
COLLOQUYS BE “ON THE RECORD”
•
SUGGESTION: DO IT!
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NET RESULT
• EVEN THE “TRIAL RECORD”
CONTAINS LOTS OF ITEMS THAT
ARE NOT IN EVIDENCE.
• EXAMPLES:
– OFFERED TESTIMONY THAT DID NOT
GET IN
– ARGUMENTS OF COUNSEL
– DOCUMENTS THAT WERE MARKED
BUT DID NOT GET IN
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WHY KEEP THESE NONEVIDENCE ITEMS IN THE
RECORD?
• TO ENABLE THE COURT OF
APPEALS TO KNOW WHAT
HAPPENED
– TO ASSESS POSSIBLE ERRORS
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KEEPING OUT THE OTHER
GUY’S EVIDENCE
• BY OBJECTION
–
–
–
–
MUST STATE A GROUND
NEED NOT CITE A RULE BY NUMBER
E.G.: “CALLS FOR HEARSAY”; “IRRELEVANT”
FAILURE TO STATE A GROUND WAIVES THE
OBJECTION
• BY TIMELY MOTION TO STRIKE
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• IF MOTION TO STRIKE IS GRANTED
– JURY IS TOLD TO DISREGARD THE
EVIDENCE
– IN A GROSS CASE, A MISTRIAL MAY BE
DECLARED
– NOTHING IS PHYSICALLY “STRICKEN”
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Evid. Intro. + Chap. 1
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WHEN YOUR OFFERED
EVIDENCE IS WRONGLY KEPT
OUT
• MUST MAKE AN “OFFER OF
PROOF” – SPECIAL MEANING IN
THIS CONTEXT
– INFORMS THE COURT WHAT THE
EVIDENCE WOULD HAVE BEEN
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•
REASONS FOR THE OFFER-OFPROOF REQUIREMENT:
1. GIVES THE TRIAL JUDGE A CHANCE
TO RECONSIDER THE EXCLUSION
RULING
2. GIVES THE COURT OF APPEALS THE
INFO THEY NEED TO DECIDE IF THE
EXCLUSION WAS ERRONEOUS
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3 TYPES OF OFFER OF PROOF
(OUTSIDE JURY’S HEARING)
1. SUMMARY ORAL STATEMENT BY
COUNSEL
2. DETAILED Q & A IN WRITTEN
FORM
3. DETAILED Q & A WITH WITNESS
ON THE STAND
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OBJECTING IN ADVANCE:
THE MOTION IN LIMINE
• COUNSEL ASKS FOR ORDER IN LIMINE
BEFORE TRIAL
• BASED ON PREJUDICE E.G., BIG COMPANY; RICH
PERSON; MINORITY PERSON
• THE IN LIMINE TOPICS ARE THEN OFF
LIMITS
– LAWYERS CAN’T MENTION THEM IN JURY’S
HEARING
– LAWYERS ARE RESPONSIBLE FOR THEIR
WITNESSES NOT MENTIONING
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SPECIAL TYPE OF IN LIMINE
ORDER: SUPPRESSION ORDER
• CRIMINAL CASES ONLY
• FOR CONSTITUTIONAL VIOLATION
ONLY
– BAD SEARCH
– BAD CONFESSION
• APPEALABLE PRETRIAL BY GOV’T
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SOME PITFALLS FOR
LAWYERS
• HANDS IN POCKETS
• MAKING NOISES (JINGLING;
TAPPING)
• LEADING THE WITNESS →→
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LEADING
• DEFINITION: QUESTION SUGGESTS
THE EXPECTED ANSWER
• NOT ALLOWED ON DIRECT
– EXCEPTION: PRELIMINARY MATTERS
– EXCEPTION: JOGGING TIMID WITNESS
(ALLOWED WITHIN REASON)
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LEADING
• USUALLY CAUSED BY FEAR
– LAWYER IS AFRAID WITNESS WON’T
ANSWER AS EXPECTED
– QUESTION USUALLY STARTS WITH “DID”
“DO” “ARE” or “WERE”
• THE CURE:
– BEGIN QUESTION WITH “TELL US WHAT
HAPPENED WHEN ...,” “TELL US HOW ...,” OR
“WHO ...,” “WHEN,” “WHERE,” ETC.
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LEADING
• IS ALLOWED ON CROSS
– BUT IS INCREDIBLY BORING
– BEST LAWYERS DON’T DO IT
– THEY ASK “WHO,” HOW,” “TELL US,”
ETC.
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LEADING
• RULES ARE REVERSED FOR AN
“ADVERSE” WITNESS FORMERLY CALLED
“HOSTILE”
– THE OTHER PARTY
– A PERSON ALIGNED WITH THE OTHER
PARTY
• HERE, LEADING IS ALLOWED ON
DIRECT AND PRECLUDED ON
CROSS
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ROLE OF THE JUDGE
• GATEKEEPER, OR SCREEN
• CONSIDERS THE FOUNDATION POINTS
PRELIMINARILY, BUT ONLY TO SEE IF
THE EVIDENCE IS GOOD ENOUGH TO GO
TO THE JURY FOR FINAL DECISION
• RULING OF ADMISSIBILITY DOESN’T
BIND THE JURY ON ANY FACT
– EXCEPTION: JUDICIAL NOTICE IN CIVIL
CASES
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EXAMPLE:
• JUDGE AND JURY HEAR EVIDENCE THAT
HANDWRITING ON A DOCUMENT IS GENUINE
• JUDGE “RULES” THE DOCUMENT IS
AUTHENTIC, AND ADMITS IT IN EV.
• JURY CAN NOW SEE IT
• BUT: NOTHING BINDING HAS OCCURRED;
• NEITHER SIDE IS PRECLUDED FROM PUTTING
IN EV. THAT THE DOC. IS FORGED, OR FROM
ARGUING THE ISSUE IN CLOSING
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RULING OF INADMISSIBILITY
• WHERE THE JUDGE’S RULING IS TO
EXCLUDE EVIDENCE, THAT IS THE
FINAL WORD
• THE EVIDENCE IS NOT ADMITTED,
AND CAN’T BE MENTIONED
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OPENING STATEMENT
• KEEP THE FUNCTION IN MIND: TO
TELL WHAT THE EVIDENCE WILL
SHOW
• DON’T USE ARGUMENTATIVE
PHRASEOLOGY NO ADVERBS! EASY ON THE
ADJECTIVES! NO DEROGATORY NOUNS!
• IN YOUR FIRST FEW TRIALS, KEEP
SAYING: “THE EVIDENCE WILL
SHOW...”
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TO BE AVOIDED IN OPENING
STATEMENTS:
ADVERBS
• CALLOUSLY
• RECKLESSLY
• AMAZINGLY
• DISASTROUSLY
• MALICIOUSLY
• HORRENDOUSLY
• WANTONLY
LABELS
• FOOL
• CRIMINAL
• CHARLATAN
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DEMONSTRATIVE EVIDENCE
• SKETCHES, MODELS, VIDEOS, ETC.,
THAT ILLUSTRATE A WITNESS’S
TESTIMONY; VISUAL AIDS
• CAN BE MADE BEFORE TRIAL, BY THE
WITNESS OR SOMEONE ELSE
• CAN BE MADE BY WITNESS DURING
TESTIMONY [A RISK, BUT DRAMATIC]
• THE WITNESS MUST TESTIFY WHAT IT
REPRESENTS
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•
DEMONSTRATIVE EVIDENCE IS
TREATED AS PART AND PARCEL
OF THE TESTIMONY IT EXPLAINS:
1. CAN’T GO TO THE JURY ROOM IN
MOST JURISDICTIONS (SINCE
TESTIMONY CAN’T)
2. WILL BE STRICKEN IF THE
TESTIMONY IS STRICKEN
•
•
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e.g., WITNESS DOESN’T COMPLETE
CROSS-EXAM
e.g., WITNESS FOUND TO LACK
COMPETENCY
Evid. Intro. + Chap. 1
38
• ALTHOUGH DEMEANED AS MERELY
TESTIMONY IN ANOTHER FORM,
DEMONSTRATIVE EVIDENCE HAS
GREAT PERSUASIVE POWER
• IT IS REMEMBERED BETTER THAN
THE TESTIMONY
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A WORD ABOUT
“REAL” EVIDENCE: TANGIBLE
THINGS
• MURDER WEAPON
• BLOODY SHIRT
• THESE ARE USUALLY IRRELEVANT,
STRICTLY SPEAKING
– THEY DON’T MAKE A FACT IN DISPUTE MORE
OR LESS PROBABLE
• BUT ARE TRADITIONALLY ALLOWED
WITHIN REASON
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APPELLATE IMPACT OF ERRONEOUS
RULING ON EVIDENCE
RULE 103
USUALLY, THIS IS GROUND FOR
REVERSAL ONLY WHERE:
1. A SUBSTANTIAL RIGHT WAS
AFFECTED [i.e., NOT HARMLESS],
and
2. STEPS WERE TAKEN TO “PRESERVE
ERROR”
•
•
2011
OBJECTION, MTN. TO STRIKE
OFFER OF PROOF
Evid. Intro. + Chap. 1
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THE CONSTITUTIONAL
INTERSECTION
• EVIDENCE RULINGS OFTEN HAVE
CONSTITUTIONAL DIMENSIONS:
– FRUIT OF A BAD SEARCH (4TH AM.)
– FRUIT OF A BAD CONFESSION (5TH AM.)
– DENIAL OF 6TH AM. RIGHT OF
CONFRONTATION
– DENIAL OF 6TH AM. RIGHT TO SUMMON
WITNESSES
– FORCED SELF-INCRIMINATION (5th AM.)
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