Transcript EVIDENCE - University of Houston Law Center

INTRODUCTION AND
CHAP. 1
P. JANICKE
2006
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
2006
Evid. Intro. + Chap. 1
2
ONLY PARTIES OFFER
EVIDENCE
(WITH RARE EXCEPTIONS TO BE NOTED)
• WHO ARE THE PARTIES?
– CRIMINAL CASE: THE STATE; THE
DEFENDANT
– CIVIL CASE: PLAINTIFF; DEFENDANT
2006
Evid. Intro. + Chap. 1
3
WHO ARE NOT PARTIES
(AND CANNOT OFFER
EVIDENCE) ?
• A WITNESS
• THE JUDGE
• A VICTIM
2006
Evid. Intro. + Chap. 1
4
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
• MR. FASTOW GAVE EVIDENCE AT THE LAYSKILLING TRIAL
• HE DID NOT INTRODUCE ANY EVIDENCE
2006
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 “INTRODUCED” BY THE PARTY]
• THE ANSWER IS “IN EVIDENCE” UNLESS
THE JUDGE SAYS OTHERWISE
2006
Evid. Intro. + Chap. 1
6
“OFFERING” EVIDENCE
FOR DOCUMENTARY AND TANGIBLE
EVIDENCE:
PARTY’S LAWYER HAS DOCUMENT MARKED
BY CLERK FOR ID
1.
•
CLERK SAYS “THIS WILL BE P’S EX. __ FOR ID”
2.
LAWYER ASKS QUESTIONS OF A WITNESS
ABOUT IT
– CALLED “LAYING THE FOUNDATION”
– MAINLY TO PROVE AUTHENTICITY
3. LWYR. OFFERS DOC./ THING IN EVIDENCE
•
4.
2006
SAYS “I OFFER P’s EX. __ FOR ID INTO EVIDENCE”
JUDGE SAYS THE MAGIC WORDS
Evid. Intro. + Chap. 1
7
THE HEARSAY RULE
IN ONE MINUTE – PART (A)
• DOCUMENTS ARE USUALLY
HEARSAY AND AREN’T USUALLY
ALLOWED IN EVIDENCE
– EXCEPTION: THOSE AUTHORED BY
THE NON-OFFERING PARTY
– EXCEPTION: OFFICIAL RECORDS, IN
CIVIL CASES
2006
Evid. Intro. + Chap. 1
8
THE HEARSAY RULE
IN ONE MINUTE – PART (B)
• ORAL UTTERANCES MADE OUT OF
COURT CAN’T BE TESTIFIED TO
– EXCEPTION: UTTERANCES OF THE
NON-OFFERING PARTY
– EXCEPTION: UTTERANCES OFFERED
TO PROVE A STATE OF MIND THAT IS
IN ISSUE
2006
Evid. Intro. + Chap. 1
9
“PROOF” IS VAGUE TERM
• TWO DECIDERS:
– THE JUDGE: PRELIMINARY SCREEN
– THE JURY: ULTIMATE FINDER OF FACT
• WHEN DO YOU FIND OUT?
– JUDGE: RIGHT AWAY (USUALLY)
– JURY: AFTER IT’S ALL OVER
• SO, WE USUALLY EQUATE “PROOF” AND
“EVIDENCE” – “THE PROOF WAS
INSUFFICIENT” “HE HAD TOO LITTLE
PROOF OF ____”
2006
Evid. Intro. + Chap. 1
10
RELEVANCE AND
COMPETENCE
RELEVANCE:
• 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
2006
Evid. Intro. + Chap. 1
11
• NEARLY EVERYTHING IS RELEVANT
TODAY
• THE 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
RULE 403
2006
Evid. Intro. + Chap. 1
12
RELEVANCE PROCEDURE:
1. OFFER: e.g., ask a question
2. OBJECTION: IRRELEVANCE
3. JUDGE ASKS: What is the relevance?
and PROPONENT ANSWERS
4. OBJECTOR: PREJUDICIAL, OR
CONFUSING, OR WASTE OF TIME
5. COUNTER BY “PROPONENT” PARTY
6. RULING BY JUDGE
2006
Evid. Intro. + Chap. 1
13
COMPETENCE
• THE OFFERED EVIDENCE MEETS
ALL THE OTHER RULES OF
ADMISSIBILITY
• ESPECIALLY: RULE EXCLUDING
HEARSAY EVIDENCE RULE 802
2006
Evid. Intro. + Chap. 1
14
FEDERAL RULES
• FIRST ADOPTED 1975
• APPLY IN FEDERAL COURT TRIALS
– BUT NOT SENTENCING, BAIL
HEARINGS, ETC.
• HAVE BEEN THE MODEL FOR
STATES’ RULES, INCLUDING TEXAS
2006
Evid. Intro. + Chap. 1
15
TEXAS RULES
• UNTIL 2000 WE HAD SEPARATE
CRIMINAL AND CIVIL RULES
• NOW COMBINED
2006
Evid. Intro. + Chap. 1
16
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)
2006
SPECTATORS
(FOR P)
Evid. Intro. + Chap. 1
17
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)
2006
SPECTATORS
(FOR D)
Evid. Intro. + Chap. 1
18
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 BY
REPORTER
• DOCUMENTARY AND TANGIBLE EVIDENCE
KEPT BY THE CLERK
2006
Evid. Intro. + Chap. 1
19
•
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!
2006
Evid. Intro. + Chap. 1
20
CONCLUSION
• THE “TRIAL RECORD” CONTAINS
LOTS OF STUFF THAT IS NOT IN
EVIDENCE. EXAMPLES:
– OFFERED TESTIMONY THAT DID NOT
GET IN
– ARGUMENTS OF COUNSEL
– DOCUMENTS THAT WERE MARKED
BUT DID NOT GET IN
2006
Evid. Intro. + Chap. 1
21
• THE FACT-FINDER BASES HER
DECISIONS ONLY ON EVIDENCE
THAT HAS BEEN ADMITTED,
SOMETIMES CALLED THE
“EVIDENTIARY RECORD” [SUBPART OF
THE TRIAL RECORD]
• THEORETICALLY, THE JURY
IGNORES ANY OTHER INFO
2006
Evid. Intro. + Chap. 1
22
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”
• BY TIMELY MOTION TO STRIKE
2006
Evid. Intro. + Chap. 1
23
• A MOTION TO STRIKE IS TIMELY IF:
– THE OTHER SIDE HAS A FAIR CHANCE
TO FIX THE PROBLEM
– OTHER EVIDENCE HAS NOT YET COME
IN BASED ON THE TO-BE-STRICKEN
EVIDENCE
• IF MOTION IS GRANTED
– JURY IS TOLD TO DISREGARD
– IN A GROSS CASE, A MISTRIAL MAY BE
DECLARED
2006
Evid. Intro. + Chap. 1
24
INSTRUCTION TO DISREGARD: IS
IT AN ANACHRONISM?
• JURY MAY NOT BE ABLE TO
COMPLY
• BUT, COURTS ARE ABLE TO
COMPLY
– MOTIONS AT CLOSE OF EVIDENCE
– APPEAL
2006
Evid. Intro. + Chap. 1
25
WHEN YOUR OFFERED
EVIDENCE IS WRONGLY KEPT
OUT
• MAKING A FACE WON’T DO
• MUST MAKE AN “OFFER OF PROOF” –
SPECIAL MEANING IN THIS CONTEXT
• MUST INFORM THE COURT WHAT THE
EVIDENCE WOULD HAVE BEEN
2006
Evid. Intro. + Chap. 1
26
3 TYPES OF OFFER OF PROOF
(OUTSIDE JURY’S HEARING)
1. SUMMARY ORAL STATEMENT OF
COUNSEL
2. DETAILED Q & A IN WRITTEN
FORM
3. DETAILED Q & A WITH WITNESS
ON THE STAND
2006
Evid. Intro. + Chap. 1
27
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
• CERTAIN TOPICS OFF LIMITS
– LAWYERS CAN’T MENTION IN JURY’S
HEARING
– LAWYERS ARE RESPONSIBLE FOR
THEIR WITNESSES NOT MENTIONING
2006
Evid. Intro. + Chap. 1
28
• VIOLATING AN ORDER IN LIMINE:
– BY NONMOVING PARTY:
• A TECHNICAL CONTEMPT
• COULD LEAD TO MISTRIAL
• WILL AT LEAST LEAD TO INSTRUCTION TO
DISREGARD
– BY PROCURING PARTY:
• A TECHNICAL CONTEMPT;
• LEADS TO VACATING THE ORDER
– UNFAIR TO BIND OTHER SIDE WHEN
PROCURING SIDE HAS MENTIONED THE TOPIC
2006
Evid. Intro. + Chap. 1
29
SPECIAL TYPE OF IN LIMINE
ORDER: SUPPRESSION ORDER
• CRIMINAL CASES ONLY
• FOR CONSTITUTIONAL VIOLATION
ONLY
– BAD SEARCH
– BAD CONFESSION
• APPEALABLE PRETRIAL BY GOV’T
2006
Evid. Intro. + Chap. 1
30
A REVIEW OF JMOL MOTIONS
1. AT CLOSE OF PLAINTIFF’S CASE
•
•
FAILURE OF PRIMA FACIE PROOF
STATE COURT: MTN. FOR DIRECTED
VERDICT
2. AT CLOSE OF ALL THE EVIDENCE
•
TAKING AN ISSUE AWAY FROM THE JURY
•
•
BOTH SIDES NORMALLY MOVE
BIG PENALTY ON APPEAL FOR NOT
MOVING
STATE COURT: MTN. FOR DIRECTED
VERDICT
•
2006
[“NO REASONABLE JURY COULD, ON THE EVIDENCE, FIND
_______”]
Evid. Intro. + Chap. 1
31
3. AFTER VERDICT
2006
•
“NO REASONABLE JURY COULD, ON THE
EVIDENCE, FIND _______”
•
SAME TEST AS BEFORE
•
WHY THE DUPLICATION?
Evid. Intro. + Chap. 1
32
• AFTER RULING ON JMOL #3, THE CASE
MAY BE READY FOR ENTRY OF A
JUDGMENT
– A SHORT PAPER
– IS WHAT GETS APPEALED
• IN A COMPLEX CIVIL CASE THE
JUDGMENT COULD COME YEARS AFTER
THE TRIAL AND VERDICT
• CAVEAT: PRESS REPORTS
2006
Evid. Intro. + Chap. 1
33
JAML MOTIONS
IN CRIMINAL CASES
• JUDGMENT OF ACQUITTAL AS A MATTER
OF LAW
• SIMILAR IN LOGIC TO JMOL IN CIVIL
CASES
• BUT, PROSECUTION CAN’T GET
ANYTHING EQUIVALENT
[NOTE THE “A” = ACQUITTAL]
2006
Evid. Intro. + Chap. 1
34
SOME PITFALLS FOR
LAWYERS
• HANDS IN POCKETS
• MAKING NOISES (JINGLING;
TAPPING)
• LEADING THE WITNESS →→
2006
Evid. Intro. + Chap. 1
35
LEADING
• DEFINITION: QUESTION SUGGESTS
THE EXPECTED ANSWER
• NOT ALLOWED ON DIRECT
– EXCEPTION: PRELIMINARY MATTERS
– EXCEPTION: JOGGING TIMID WITNESS:
ALLOWED WITHIN REASON
2006
Evid. Intro. + Chap. 1
36
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.
2006
Evid. Intro. + Chap. 1
37
LEADING
• IS ALLOWED ON CROSS
– BUT IS INCREDIBLY BORING
– BEST LAWYERS DON’T DO IT
– THEY ASK “WHO,” HOW,” “TELL US,”
ETC.
2006
Evid. Intro. + Chap. 1
38
LEADING
• RULES ARE REVERSED FOR AN
“ADVERSE” WITNESS FORMERLY CALLED
“HOSTILE”
– THE OTHER PARTY
– A PERSON ALIGNED WITH THE OTHER
PARTY
• NOW LEADING IS ALLOWED ON
DIRECT AND PRECLUDED ON
CROSS
2006
Evid. Intro. + Chap. 1
39
ROLE OF THE JUDGE
• GATEKEEPER, OR SCREEN
• DECIDES SOME POINTS PRELIMINARILY,
FOR PURPOSES OF ADMISSIBILITY FOR
JURY’S CONSIDERATION
• RULING OF ADMISSIBILITY DOESN’T
BIND THE JURY ON ANY FACT
– EXCEPTION: JUDICIAL NOTICE IN CIVIL
CASES
2006
Evid. Intro. + Chap. 1
40
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: NEITHER SIDE IS PRECLUDED
FROM PUTTING IN EV. THAT THE DOC. IS
FORGED, OR FROM ARGUING THE ISSUE
IN CLOSING
2006
Evid. Intro. + Chap. 1
41
• WHERE THE JUDGE’S RULING IS TO
EXCLUDE EVIDENCE, THAT IS THE
FINAL WORD
• IN THIS LIMITED SENSE THE JUDGE
IS A “FINDER OF FACT” EVEN IN A
JURY TRIAL
2006
Evid. Intro. + Chap. 1
42
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!
– YOU CAN ACCOMPLISH THE SAME PURPOSE WITH
POLITE TERMS
• IN YOUR FIRST FEW TRIALS, KEEP
SAYING: “THE EVIDENCE WILL SHOW...”
2006
Evid. Intro. + Chap. 1
43
TO BE AVOIDED IN OPENING
STATEMENTS:
ADVERBS
• CALLOUSLY
• RECKLESSLY
• AMAZINGLY
• DISASTROUSLY
• MALICIOUSLY
• HORRENDOUSLY
• WANTONLY
LABELS
• FOOL
• JERK
• IDIOT
2006
Evid. Intro. + Chap. 1
44
DEMONSTRATIVE EVIDENCE
• SKETCHES, MODELS, ETC., THAT
ILLUSTRATE A WITNESS’S
TESTIMONY; i.e., VISUAL AIDS
• CAN BE MADE BEFORE TRIAL
• CAN BE MADE BY THE WITNESS OR
SOMEONE ELSE
• THE WITNESS MUST TESTIFY WHAT
IT REPRESENTS
2006
Evid. Intro. + Chap. 1
45
• DEMONSTRATIVE EVIDENCE IS TREATED
AS PART AND PARCEL OF THE
TESTIMONY IT EXPLAINS
• CAN’T GO TO THE JURY ROOM IN MOST
JURISDICTIONS (SINCE TESTIMONY
CAN’T)
• WILL BE STRICKEN IF THE TESTIMONY IS
STRICKEN
– e.g., WITNESS DOESN’T COMPLETE CROSSEXAM
– e.g., WITNESS FOUND TO LACK
COMPETENCY
2006
Evid. Intro. + Chap. 1
46
• ALTHOUGH DEMEANED AS MERELY
TESTIMONY IN ANOTHER FORM,
DEMONSTRATIVE EVIDENCE HAS
GREAT PERSUASIVE POWER
• IT IS REMEMBERED BETTER THAN
THE TESTIMONY
2006
Evid. Intro. + Chap. 1
47
A WORD ABOUT
“REAL” EVIDENCE
• 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
2006
Evid. Intro. + Chap. 1
48
ESTABLISHING RELEVANCE
MAY NEED LINKS
• LIGHTER FOUND AT SCENE – NOT
YET PROVED WHOSE IT IS
• COURT CAN ADMIT IT “SUBJECT TO
CONNECTION”
– FAILURE TO CONNECT LEADS TO
MOTION TO STRIKE
• OR, COURT CAN KEEP IT OUT UNTIL
ALL THE LINKS ARE IN EVIDENCE
RULE 104 (b)
2006
Evid. Intro. + Chap. 1
49
IMPACT OF ERRONEOUS
RULINGS ON EVIDENCE
RULE 103
NO GROUND FOR REVERSAL UNLESS:
1. A SUBSTANTIAL RIGHT WAS AFFECTED
–
–
HARMLESS ERROR DOCTRINE
CUMULATIVE EVIDENCE DOCTRINE
2. STEPS WERE TAKEN TO “PRESERVE
ERROR”
–
–
OBJECTION, MTN. TO STRIKE
OFFER OF PROOF
3. OR THE ERROR WAS “PLAIN”
2006
Evid. Intro. + Chap. 1
50
PRACTICAL REALITIES:
REVERSAL RISKS
• IN CIVIL CASES, SAFER TO ADMIT THAN
TO EXCLUDE
• IN CRIMINAL CASES, SAFER TO ADMIT
D’S EVIDENCE, EXCLUDE
PROSECUTOR’S
• ALL CASES: ERROR COULD BE
HARMLESS
2006
Evid. Intro. + Chap. 1
51
THE CONSTITUTIONAL
INTERSECTION
• EVIDENCE RULINGS OFTEN HAVE
CONSTITUTIONAL DIMENSIONS:
– FRUIT OF A BAD SEARCH
– FRUIT OF A BAD CONFESSION
– DENIAL OF 6TH AM. RIGHT OF
CONFRONTATION
– DENIAL OF 6TH AM. RIGHT TO SUMMON
WITNESSES
– FORCED SELF-INCRIMINATION
2006
Evid. Intro. + Chap. 1
52