Considering Cases Concerning to Gathering Information, Types of Evidence - Assignment Example

 TABLE OF RESOURCES State Statutes: Page Tex. Evid. Code §301 2 Tex. Evid. Code §401 1 Tex. Evid. Code §403 3 Tex. R. Evid. §§601-608 4 Tex. R. Evid. §§1001-1009 4 Federal Statutes: Fed. Rules Evid. §901 2 Fed. Rules Evid. §§901, 902, 903 3 Fed. Rules Evid. §§ 901 (a) 901 (b). 4 Fed. Rules Evid. §§1001-1008 4 Caselaw: Cooper Petroleum Co. v. LaGloria Oil and Gas Co., 436 S.W.2d 889, 891 3 Pittman v. State, 434 S.W.2d 352, 358 3 Stedman Fruit Co. v. Smith, 28 S.W.2d 622, 628 3 Books: Kenneth Lopez, “The Animators at Law Attorney Communication Style Study,” 2 2007 Cold Case Homicides: Practical Investigative, Richard H. Walton, 2006, 8 CRC Press, p. 208 Question 1: What types of evidence may a judge or jury consider in deciding a case? Describe and give examples of each type of evidence. Also describe ways in which a paralegal should obtain evidence and get it admitted into court. How is evidence admitted into court? Who has the authority to admit it? There are four traditional types of evidence: real, demonstrative, documentary, and testimonial. Some rules of evidence apply to all four types and some apply only to some or one of them. Real evidence is a thing the existence or characteristics of which are relevant and material. It is usually a thing that was directly involved in some event in the case. The written contract or will upon which an action is based is real evidence both to prove its terms and that it was executed by the defendant. If it is written in a faltering and shaky hand, it may also be relevant to show that the writer was under duress at the time of its execution. The bloody clothes, the murder weapon, a crumpled automobile, the scene of an accident—all are samples of what may be considered to be real evidence. To be admissible, real evidence, like all evidence, must be relevant, material, and competent. Establishing these three basic prerequisites is called laying a foundation. The relevance and materiality of real evidence are usually obvious. Its competence is established by showing that it really is what it is supposed to be. Proving that real or other evidence is what it purports to be is called authentication. Tex. Evid. Code §401; Fed. Rules Evid. §901. Real evidence may be authenticated in three ways--by identification of a unique object, by identification of an object that has been made unique, and by establishing a chain of custody. You only have to be able to use one of these ways, though it is prudent to prepare to use an alternate method in case the court is not satisfied with the one you have chosen. Tex. Evid. Code §301; Fed. Rules Evid. §§901, 902, 903. The second type of evidence is called demonstrative evidence. Demonstrative evidence demonstrates or illustrates the testimony of a witness. It will be admissible when, it fairly and accurately reflects that testimony and is otherwise unobjectionable. study comparing the learning and communication styles of practicing attorneys and of the general public indicates that attorneys prefer to talk about the evidence, while jurors prefer to see the evidence. (Kenneth Lopez, “The Animators at Law Attorney Communication Style Study,” 2007.) Typical examples of demonstrative evidence are maps, diagrams of the scene of an occurrence and animations (such as the 3D animations of crime scenes). Because its purpose is to illustrate testimony, demonstrative evidence is authenticated by the witness whose testimony is being illustrated. That witness will usually identify salient features of the exhibit and testify that it fairly and accurately reflects what he saw or heard on a particular occasion, such as the location of people or things (drugs or a gun) on a diagram. Tex. R. Evid. 403; Fed. Rules Evid. §§ 901 (a) 901 (b). It is proper in Texas to illustrate injuries by anatomic charts or outlines of the human body, and have witnesses mark on the charts the location and type of injuries the victim received. Stedman Fruit Co. v. Smith, 28 S.W.2d 622, 628 (Tex. Civ. App. - Beaumont, 1930), writ dism'd.; Pittman v. State, 434 S.W.2d 352, 358 (1968) reh'g.den. The discretion of the judge controls the admissibility of this evidence. See: Cooper Petroleum Co. v. LaGloria Oil and Gas Co., 436 S.W.2d 889, 891 (Tex. 1969). Documentary evidence is often a kind of real evidence, as for example where a contract is offered to prove its terms. When a document is used this way it is authenticated the same way as any other real evidence--by a witness who identifies it or, less commonly, by witnesses who establish a chain of custody for it. However, because they contain human language, and because of the historical development of the common law, documents present special problems not presented by other forms of real evidence, such as when they contain hearsay. Tex. R. Evid. §§1001-1009; Fed. Rules Evid. §§1001-1008. Proof of authentication of certain documentary evidence is not required if the documents are self-authenticating. Self-authenticating documents are documents that on their face show that they are authentic. Some examples of self-authenticating documents include: 1. Domestic public documents with or without a seal 2. Foreign public documents. 3. Certified copies of public records. 4. Official publications. 5. Newspapers. 6. Trade inscriptions. 7. Certified documents and records The fourth type of evidence is called testimonial evidence. This is the most basic form of evidence and the only kind that does not usually require another form of evidence as a prerequisite for its admissibility. See Tex. R. Evid. §§601-608; Fed R. Evid. 602. It consists of what is said in the court at the proceeding in question by a competent witness. In general, a witness is competent if he meets four requirements: 1. He must, with understanding, take the oath or a substitute. Id. 2. He must have personal knowledge about the subject of his testimony. In other words, the witness must have perceived something with his senses that is relevant to the case. Id. 3. He must remember what he perceived. Id. 4. He must be able to communicate what he perceived. Id. Paralegals might investigate the facts of cases and ensure that all relevant information is considered. They also identify appropriate laws, judicial decisions, legal articles, and other materials that are relevant to assigned cases. After they analyze and organize the information, paralegals may prepare written reports that attorneys use in determining how cases should be handled. The best way for a paralegal to get evidence admitted into a case is to be able to identify what type of evidence it is, anticipate any objections from your adversary, and finally be prepared with several arguments for admission instead of only one. Ultimately, the judge in the case decides whether the evidence is admitted. In the event that you object to the admission of specific evidence, make sure that the objection is noted on the trial record. If there is no record then the objection is not preserved for appeal. Question 2. The purpose of interviewing a client or witness is to gather information. What reasons are there for gathering information? Can the information gathered be used for more than one purpose? If so, what steps should be taken to gather relevant evidence? Give examples of ways you can collect relevant evidence. The most important thing when interviewing a client or witness is to find out what set of circumstances brought them to you. You want to find out what evidence or information they may have and you also want to make sure that there will be no attacks on credibility once they take the stand. Evidence gathering is also crucial, because whether you are representing your client as a plaintiff or a defendant, each position requires evidence. A productive relationship is based on honesty, earned trust, and full disclosure. In general, litigation paralegals analyze legal material for internal use, maintain reference files, conduct research for attorneys, and collect and analyze evidence. They may prepare informative or explanatory material on laws, regulations, and policy for general use. Indeed, it is often based upon the report of a paralegal that an attorney decides whether to represent or reject a prospective client. Part I of II: You have two new clients coming in this afternoon for a meeting. The first is the CEO of a nearby bank. He will be discussing a car accident that occurred recently. His Mercedes was totaled, and he was injured in the accident. He has already undergone several back surgeries. What steps are you going to take to prepare for the interview and make the client feel at ease in the office? The first thing that the paralegal should do is to completely research the facts and the laws upon which the case will be based. Additionally, if the client now suffers from a handicap resulting from the back injury, arrangements must be made for the client’s arrival convenience. This may include, visiting the client as opposed to the client coming to the office. Refreshments should be immediately available for the client. Documents, including releases to be signed for medical records should already be prepared and awaiting execution by the client. A board should be set up as a model demonstrating the streets, cars and traffic lights so that the client can explain what happened in the accident. You should travel to new clients to complete sign up documents and also photograph vehicles, accident scenes, and get statements from witnesses at the same time. The paralegal should sort and organize the medical records to form timelines and summaries of medical treatment. Chances are that the CEO, due to his position does not really have much time to spend on the intake, thus your job is to demonstrate that the law office is thoroughly prepared to handle the case in an efficient and expedient manner. Part II of II: The second client is a member of a local motorcycle club. He was involved in a car accident as well. He was driving down the road at dusk, and a woman driving an SUV pulled out of a grocery store parking lot and hit him, knocking him off his bike. He suffered a broken leg. He is the owner of a motorcycle repair business, but is losing a lot of time at work because of his injury. What steps will you take to prepare responses to the legal issues that may arise? I would visit this client by telephone and then type memoranda outlining significant details, including witnesses, potential problems, and any other observations that may be helpful. I would start drafting personal injury demands for automobile, slip/fall, and other types of injury cases. These demands range from simple typed demands to more elaborate demands which include color photos, accident reports, medical reports and binding. Additionally, because I am dealing with a very tight schedule I would begin data basing this case. For example: Technology-wise, "On Time" for calendaring; "Namebase" for client information management ("it keeps names, addresses and telephone numbers of thousands of clients in seamless fashion"); "Ideafisher" to help them strategize the possible themes of their cases; "Solvit," a shareware program to be used at settlement conferences or in discussions with clients to estimate the type of structured settlement possible; "Total Recall," to quiz myself and the attorney on his mastery of medical terminology before medical depositions or treating physician interviews. Part I of II: You are going to have some clients in the office this afternoon who witnessed the accidents described in Question 3. The first witness is an elderly woman who was right behind the motorcyclist when the accident happened. What special circumstances might you expect to consider when interviewing her? There were two boys, ages 11 and 12, riding bicycles in the parking lot of the grocery store when the accident happened. They both gave their names to the police officer saying that they saw the woman hit the motorcyclist. What special circumstances might you expect to consider in interviewing the boys? Now assume the boys are 15 and 16. Is there a difference(s) in how you will handle the interview? Explain The main issue for both the elderly woman and the young boys as witnesses is their capacity. I would begin my discussion with the elderly woman by asking about her backround, seeing what her daily regimine is and what her temperment is. Her memory is important here so I would be utilizing various techniques to assess it. I am really looking to gain insight to her speech and language patterns, her concentration and orientation. Finally I want to see if there is any imparment of recent memory or remote memory. This will ultimately determine her usefulness as a witness1. Likewise for the young boys. I would try to engage the boys as much as possible. Child witnesses are unpredictable and since they are not in court, I would want them to be as open with me as possible. To achieve that, I would avoid asking leading questions. So rule one with child witnesses is to go slow and be friendly. If you go slow and are friendly then the child may end up giving you valuable information during their interview. Knowing what kind of activities the child likes may soften the child up and also shows them that you are not a person to be intimidated by. It may be a good idea to begin discussing with the boys where they were bike riding to. As to the 15 and 16 year old, one issue that would arise, is where were they going. I would wonder if they were visiting the bike shop and if they perhaps should have been in school instead. They do not have the same fears that the young boys would have and I would be sure not to speak to them as if they were not children. Finally, I want them to feel that they are being treated as adults and that because I respect their testimony, it is vital that they be as honest in their recall as possible. Part II of II: A woman was driving a bus down Main Street. The two passengers on the bus were handicapped people, who were going to work at the local Salvation Army. The three of them witnessed a semi truck make an illegal left turn, hitting a gray Mercedes Benz in the process. The police report took statements from all three people, but it appears that there may be some dispute among the three as to exactly how the accident happened. The two employees from the Salvation Army seem to disagree with the driver of the bus. What questions do you have for all three witnesses? Should you interview them all together or one at a time? Why? The first thing I want to know is where everybody was sitting when the saw the accident. The driver has the best vantage point visually it would seem. This cannot be determined however until I know where the other two witnesses were sitting. I want to know if this is a daily route for the two Salvation Workers. If the bus was moving, I want to know what drew their attention to the accident at that particular moment. All three saw the illegal left turn so that would trump everything hopefully. I would interview all three women separately. It must be remembered that two of the witnesses work together so it is certain that there will be many conversations about the accident and their roles in the case. I will also need to be aware of the fact that by the time the trial comes it is highly likely that one of them will conform their testimony to agree with the other. Read More