(1) Tends to Make the Existence

Britta Liukonen Evidence Outline Page 26 of 26

Fall 2001, 11/8/01

1) Relevance

a) Rule

i) FRE, TRE 401

(1) tends to make the existence

(2) of a consequential (material) fact

(3) more or less probable (probative)

ii) FRE, TRE 402: relevant evidence is admissible

(1) federal standards control

(2) but in diversity cases, if relevance is a state substantive policy, courts exclude the evidence pursuant to state law

b) Concept of relevance

i) tendency

(1) any probative value at all (a brick is not a wall)

(2) tendency to make proposition more or less probable

(3) still a tendency if there is an inference that may be drawn; even if different inferences can be drawn, that's okay

ii) speculation: sometimes things are too speculative to be relevant

(1) logical relevance is important, not legal relevance

(2) circumstantial evidence: is still relevant

c) Materiality ("fact of consequence")

i) the evidence must "go to" the proposition

(1) is this a fact of consequence in the case?

(2) is this something properly provable?

d) Multiple Purposes & Limited Admissibility

i) rules

(1) FRE 105:

(a) E admissible for only one purpose/to one party

(b) upon request, ct shall restrict the E & instruct jury

(2) TRE 105a (the following only in Texas rule); the above +

(a) if allowed: if you don’t request limiting instruction, can’t complain of absence on appeal

(b) if excluded, can’t complain on appeal unless it was expressly offered only for admissible, limited purpose

ii) tendency to prove multiple propositions: ex. subsequent remedial measure inA in tort case, but can be used to attack manager’s cr.

2) Prejudice & Proabtiveness:

a) Rule 403

i) evidence may be excluded if

ii) probative value is substantially outweighed by:

(1) the danger of unfair prejudice

(2) confusion of issues

(3) misleading jury

(4) considerations of undue delay (“waste of time” in FRE)

(5) or needless presentation of cumulative evidence

the above are not exemplary – there is no “such as”

b) procedure

i) remedy = exclusion

ii) burden = on objector; must “substantially” outweigh probative value

iii) SOR: clear abuse of discretion

c) probative value:

i) strength of logical inference

ii) how central to material issues/core issues of case

iii) remoteness: farther away, less probative

iv) similarity

v) proponent’s need:

(1) if offer to stipulate, decreases need

(2) ct can’t force you to accept stipulation but probative value is decreased nonetheless

(3) SCt says consider:

(a) probative & prejudicial tendencies of offered E

(b) probative & prejudicial of avail. alternatives, include stipulation (is it really a good alternative? will it really be less prejudicial?)

vi) credibility is not an issue, but only for jury to decide!

d) trial concerns:

i) unfair prejudice

(1) all E is prejudicial or you wouldn’t offer

(2) “would cause the jury to render a decision on an improper basis”

(3) appeals to juror’s sympathies, arouses horror, desire to punish, to cause jury to base decision on improper basis (not the propositions of the case)

ii) confusion & misleading jury:

(1) happens when you create a satellite q causing juror confusion

(2) always argue this when something offered w/ limiting instruction by saying the jury won’t understand the ltd. nature of the E & will mislead them into deciding on improper basis

iii) undue delay & waste of time

(1) too much minutia

(2) proving something inconsequential; that doesn’t help proposition

(3) convince judge this will cause the trial to go on a few more days! (b/c you have to then bring in own W’s to rebut that)

iv) needlessly cumulative

(1) already est. & new evidence doesn’t add anything

(2) repetitive = asking same W several times

(3) cumulative = calling 5 W’s to prove same proposition!

e) practical considerations:

i) SOR = abuse of discretion (so win at trial ct or you’re SOL)

ii) argue at bench (unless waste of time – may make jury dislike other guy)

iii) if opp. counsel wants hearing at bench, ask to ask more questions to finish authenticating, if necessary

3) Witnesses

a) Competency

i) = testimonial capacity

(1) perception

(2) memory

(3) ability to communicate (understand Q and relate answer)

(4) honesty (oath is all that we require)

ii) FRE 601

(1) presumed competent (except as otherwise provided in FREs)

(a) minor children 17 USC 309 (a2) (c) read this

(i) if child testifies against criminal D or abuse/abduction case

(ii) opponent must file written motion showing compelling need for competency exam of child & offer of proof showing incompetence! to get hearing

(b) diversity cases: state rules will apply to diversity cases if Texas law provides the rules of decision for who can testify (ex. dead man’s statute)

iii) TRE 601 [different] presumed competent except

(1) insane persons:

(a) (rules don’t say, but you are “insane” if the insanity interferes w/ ability of W to be a W (perception, memory, honesty, ability to communicate)

(b) must have proof to support objection that W is insane (voir dire prob. not enough; get expert or jj of ct. declaring incomp.) jj not enough????

(2) minors: 601a2: if they appear “not to possess sufficient intellect” after examined by court

(3) procedure:

(a) if objection to competence, proponent’s burden to show W is competent

(b) if no objection, waived

(d) competence is a prelim matter decided by ct so they can consider inA E to determine competence

b) Personal Knowledge (R. 602)

i) personal knowledge = something perceived thru own senses

ii) lay factual predicate!!!!

(1) enough E so a rzbl person could find there was personal Kn

(2) is a question for the judge (once personal kn. there, rest for jury weight)

(3) examples

(a) Q: do you know what color the light was? A: yes. OBJECTION lack of personal kn. OR’d. Ask to take on voir dire to est. a lack of personal kn (to ferret out if he knows from HS or something).

(b) Did the driver of the blue car know the light was red? OBJECTION speculative b/c humanly impossible to have personal kn of this.

iii) experts do not need to have personal kn as long as rely on something others in field would rely on (see infra 6b)

c) The Oath: (R. 603)

i) reqs:

(1) awakens conscience &

(2) impress duty to tell truth under perjury penalties

ii) affirmation is all that is req’d – oath is religious

iii) must object at time of oath or waived

d) Form & Scope of Examination of Witnesses

i) the rule à control by the court (R. 611a)

(1) rzbl control over (a) mode and (b) order of W & E to:

(a) effective for ascertaining truth

(b) avoid waste of time

ii) actual controls you’ll see:

(1) ct can change order (if you have a W that is coming to town,…)

(2) can put on time limits, limit no. witnesses

(3) criminal cases:

(a) redirect should only be scope of cross (Fed. only)

(b) if new material covered in redirect, must allow recross (confrontation clause)

iii) scope of the examination

(1) Federal ltd. to scope of direct 611b

(a) cross should (discretionary) be ltd. to

(b) s.m. of direct

(i) if you must ask q, recall as your W (hostile)

(ii) what encompasses s.m. is entirely up to judge

(d) and other stuff in ct’s discretion; if allowed, it must conform to rules of direct (no leading) (ex. ask now so you don’t recall & waste time)

(2) Texas wide open

iv) form of the question (R. 611c)

(1) leading only allowed:

(a) on cross (but is in judge’s discretion – if adverse to other side you probably will not be allowed to!)

(b) on direct if

(i) necessary to develop T (child, frightened W, to signpost)

(ii) preliminary or undisputed matters

(iii) on direct if hostile W or adverse party

1. hostile W’s are evasive or nonresponsive or arguing w/ you

2. adverse parties:

a. rule à you can all to get your story out first or to prove part of your prima facie case to avoid directed verdict

b. who is adverse party? anyone once in case (even if gone now) R3P’s, those “identified” w/ adverse parties (employee of D corp., friend, family)

(2) form objections: are not harmful but trial tools

(a) ambiguous, confusing, unintelligible

(b) argumentative

(d) compound/multifarious

(e) harassing, embarrassing

(f) failure to lay proper predicate

(i) personal kn

(ii) authenticate docs.

(iii) hearsay exception

(iv) expert

(g) narrative (problem b/c you can’t object to q’s) (in ct’s discretion)

(h) nonresponsive (can use for opposing W or to shut your own up!)

(i) speculation, conjecture (if humanly impossible to have personal kn of that)

e) Credibility & Impeachment

i) generally

(1) impeachment = attacking cr

(a) attack ability to perceive (material)

(b) attack memory

(d) prior inconsistent statements

(e) contradict with extrinsic E

(f) show bias, interest and corruption

(g) attack character (propensity to lie)

(2) credibility =

(a) ability to perceive

(b) ability to remember

(d) ability to communicate what W knows

ii) prior inconsistent statement & contradictions

(1) impeach w/ a written/oral statement by the W, adopted by the W, or by extrinsic E (another W or document)

(2) predicate

(a) prior inconsistent stmt in federal court: FRE 613a: show opposing counsel prior inconsistent stmt (don’t show W or give opp to explain) if requested

(b) impeach by extrinsic E in federal ct:

(i) give W opportunity to explain

(ii) give opposing counsel opportunity to interrogate

(iii) or don’t say anything, have later W testify, and he has the ability to be recalled (but you can’t allow W to be dismissed; only step down) Hudson

(iv) exception:

1. party opponent doesn’t have to be confronted (party!)

2. or in interests of justice (accidental impeachment, etc.)

(c) impeach in Texas court (TRE 613a): by prior inconsistent stmt or extrinsic E) à before further cross, must confront the W with

(i) time statement made

(ii) place statement made

(iii) who made statement

(iv) content of the conversation (s.m. of stmt)

(v) and give W opportunity to explain or deny

(3) practically, impeachment by prior inconsistent statement

(a) commit W to present T (that is inconsistent)

(b) lay predicate

(c) persuade the jury that the prior statement is more accurate than present T (generally we want to show no cr. but also show prior stmt probably more accurate):

(i) you told the truth

(ii) close to time of accident (use this fact-based Q, not “your memory was better?” b/c that’s too value-laden)

(iii) deposition (attys there, signed, make changes, signed, swore to truth)

(iv) bias facts (made that stmt before fight w/ P or D)

(v) made prior stmt before talked to attys

(vi) there is always a rzn for the change in story – show the rzn to the jury!

(d) prove impeaching statement

(i) if admitted, can’t offer impeachment stmt

(ii) if denied, admit the stmt and read it to the jury

(iii) don’t ask a Q too many!!! look at jury w/ a smug look as you walk back to counsel table after impeaching W – gives them time to think about it

(iv) if denied, and another W will impeach, give jury preview: ask “so you would expect Mr. Other W to back you up on this?”; when Other W on stand, tell them the impeachable stmt then ask impeach

(4) hearsay: if offered to impeach, then not for truth of matter (“this goes to cr. judge”)

(5) what stmts qualify as prior inconsistent stmts?

(a) made by the W (or adopted?)

(b) oral, written, (un)sworn, even silence (unless Miranda silence)

(d) omissions: can impeach if didn’t mention something important (first commit W to saying he told all important things at depo and that this would be important then impeach)

(e) no recollection

(i) forget previously, now remember = inconsistent

(ii) remembered, now forgot = can be inconsistent if “forgetfulness” is feigned:

1. other T today is detailed

2. only the bad detail can’t be remembered

(iii) this is not forgetting but only laying predicate: told officer at scene light yellow; today says light red ß that is inconsistent; today in laying predicate you ask if he remembers what he told the officer; that is not a lack of memory about the light and is an irrelevant forgotten fact

(f) opinions: if W decides “not his fault” (opinion) then later says “light was red” that is a fact inconsistent w/ opinion and can be used to impeach (even though HS)

(6) Collateral Matter Rule (c/L, not in rules)

(a) rule: a W may not be impeached w/ extrinsic E on a collateral matter

(b) extrinsic: if a doc can be authenticated through that W, it is not extrinsic

(d) Lynchpin exception:

(i) collateral fact that is inconsistent, when proved, starts to unravel whole story

(ii) ex. you say he was outside w/ your (alibi); the rain is collateral matter but if you prove not raining and that was “why he remembered specifically” whole story starts to unravel

(7) extrinsic E to prove inconsistencies

(a) can use extrinsic E to prove prior inconsistent stmt was made, but only if not unequivocally admitted

(i) this is written in Texas rule

(ii) would be same effect in federal ct per 403 (waste of time; low probative)