Exam 3 Flashcards
1
Q
Types of Evidence
A
Testimonial Evidence.
Physical Evidence.
2
Q
Testimonial Evidence: Definition
A
Admissions, confessions, and statements by parties involved in the investigation.
3
Q
Physical Evidence: Definition
A
Items and the condition of tangible objects that are collected and or documented.
4
Q
Importance of Evidence
A
Both forms are important and neither can be excluded.
Physical evidence can never lie, which makes it more credible.
5
Q
Testimonial Evidence: Problems
A
Comes from people and subject to change.
Can lie to investigators and court.
Misperceive events and report erroneously.
Unknowingly fill in blanks.
Becomes more credible when corroborated with physical evidence.
6
Q
Documenting Evidence
A
“If it isn’t written down, it didn’t happen”.
May not testify for years after event.
Write EVERYTHING down so it is available later.
7
Q
Testifying: Refresh Memory
A
Review notes and records.
Be prepared!
Meet with prosecutor ahead of time to discuss testimony,
Picture case, scene, objects, and events.
8
Q
Testifying: Accuracy
A
If answer is an estimate, say it’s an estimate.
Beware attorneys suggesting times/distances when you do not recall actual ones.
Do not agree unless you independently arrive at same estimate.
9
Q
Testifying: Speak as Yourself
A
Be yourself.
Use everyday terms jury will understand.
Don’t memorize, just speak.
10
Q
Testifying: Tips
A
Refresh your memory. Be accurate. Speak in your own words. Dress professionally. Speak clearly and loudly. Be professional and responsible. Tell the truth. Careful outside court room.
11
Q
Testifying: Being Sworn In
A
When taking the oath, stand up straight, pay attention to the clerk, and say “I do” clearly.
12
Q
Testifying: Oath
A
Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
13
Q
Testifying: Affirmation
A
I do solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be the truth the whole truth and nothing but the truth.
14
Q
Testifying: Oath vs. Affirmation
A
Oath is made under nonhuman penalty or sanction (God).
Germanic peoples swore by their weapons.
15
Q
Testifying: Appearance
A
Neat and proper dress are important.
You represent the government - look like it!
16
Q
Testifying: Speaking
A
Speak clearly, slowly, and loudly enough.
Avoid distracting mannerisms (gum, nervous leg).
Make eye contact with Jury.
Be convincing and confident.
Be polite.
17
Q
Testifying: Professionalism
A
Be on time. Know courtroom procedure (where to go, how to be sworn in). Look like you've been there before. Be serious and avoid laughing. Do not lose your temper.
18
Q
Testifying: Telling the Truth
A
Tell the truth.
Think before you speak.
Don’t volunteer information. Answer the questions and wait for the next.
Do not exaggerate.
If you don’t know/remember say so.
If you make a mistake, admit it and correct it.
Speak positively, avoid “I think” and “I believe”.
19
Q
Testifying: Outside Courtroom
A
Jurors and others can be in same public areas as you.
Must not discuss case with anyone outside courtroom.
Jurors can observe how you act outside courtroom.
20
Q
Federal Rules of Evidence: Rule 401
A
Test for relevant evidence.
To be relevant, it must be reliable.
Evidence is relevant if:
a) it has tendency to make a fact more/less probable than without evidence.
b) the fact is of consequence in determining action.
21
Q
Federal Rules of Evidence: Rule 402
A
General admissibility of relevant evidence.
Relevant evidence admissible unless the US constitution, federal statute, these rules, or other rules prescribed by the Supreme Court provides otherwise.
Irrelevant evidence not admissible.
22
Q
Fry v. United States (1923)
A
Fry charged with murder.
At trial, defense tried to call expert witness to testify that Fry had passed polygraph test.
Expert testimony held inadmissible because test had not gained general acceptance in field.
23
Q
Types of Witnesses
A
Lay witness.
Expert witness.
24
Q
Law Witness
A
Any witness who is not an expert.
Victim, eyewitness, police officer, etc.
25
Expert Witness
A witness who has knowledge not normally possessed by the average person.
Fingerprint examiner, lab analyst, ballistics expert, medical examiner, etc.
26
Federal Rule of Evidence: Rule 701
Opinion testimony of lay witness.
If witness is not an expert, testimony in form of opinion is limited to one that is:
a) rationally based on the witness's perception.
b) helpful to clearly understanding the witness's testimony or determining a fact in issue.
c) not based on scientific, technical, or other specialized knowledge.
27
Permissible Lay Witness Opinions
What speed was car traveling?
How old did suspect appear to be?
In your opinion, was suspect drunk?
Did you recognize voice in the next room?
28
Federal Rule of Evidence: Rule 702
Testimony by expert witness.
Witness qualified by expert knowledge, skill, experience, training, or education may testify in opinion if:
a) expert's scientific, technical, or otherwise specialized knowledge with help jury understand evidence or determine a fact in issue.
b) testimony based of sufficient facts or data.
c) testimony product of reliable principles/methods.
d) expert has reliably applied principles/methods to facts in case.
29
Daubert v. Merrell Dow Pharmaceuticals Inc. (1993)
Set forth non-exclusive checklist for trial courts to use in assessing reliability of scientific expert testimony.
Specific factors considered by judges are:
1) has expert testimony been tested, if it can be challenged objectively, or is it simply subjective or conclusory and cannot be assessed for reliability.
2) technique or theory subject to peer review/publication.
3) the known or potential rate of error of technique/theory when applied.
4) existence and maintenance of standars/controls.
5) technique/theory generally accepted in scientific community.
30
Expert Testimony: Admissibility
Not all specific Daubert factors can apply to every type of expert testimony.
Judges are the "gatekeepers" to exclude unreliable expert testimony.
Judge must decide on case-by-case basis.
Rejection of expert testimony exception rather than rule.
31
Daubert Standard Questions
What is basic theory being tested?
Standards controlling technique?
Theory/technique subjected to peer review/publication?
Known or potential error rate?
General acceptance of theory?
Expert accounted for alternative explanations?
Expert unjustifiably extrapolated from accepted premise to unfounded conclusion?
32
Use of Daubert Standard
Many states use the Daubert standard, but there are still some that rely on Fry.
33
Qualifying as an Expert Witness
Must be competent in subject matter.
May be qualified through knowledge, skill, practical experience, training, education, or a combination of these factors.
Minimally must know underlying methodology/procedures employed/relied upon as basis of opinion.
Background knowledge includes state of the art technology, literature review, experience creating opinion based on reasonable scientific certainty.
34
Voir Dire: Definition
Courtroom process where each side asks expert witness to qualify him/her in the eyes of the court.
Notice must be given to court and opposing counsel before trial that expert witness will be called.
Upon completion, judge will rule whether witness qualifies as an expert.
35
Voir Dire: Questions
Name, occupation, place of employment, title, position, specialty, degrees where/when/what, licenses time, length, length of practice, certifications time/length, positions held time/length, duties.
Tests, examination details, number of times testified, publications, acknowledgements, awards, etc.
36
Ethics: Definition
The study of what constitutes good and bad behavior as they relate to a profession (police, lawyers, doctors, teachers).
Ethical standards are based on morals.
37
Morals: Definition
A set of rules defining what is considered to be right and wrong and accepted without questions by a society, group, or individual.
38
Common Statements Made About Forensic Community
Forensic scientists ethical by nature.
Not possible to teach ethics, either you are or not.
Topic of ethics boring and too philosophical.
Training will not make unethical person ethical.
Just explain right/wrong for given situation so dilemmas are not an issue.
39
Categories for Unethical Behavior
Corruption.
Misconduct.
Immoral Behavior.
40
Corruption: Definition
When officers accept money, goods, or services for actions they are sworn to do anyway (favoritism) or to not enforce the law (looking the other way).
41
Slippery Slope: Concept
Once one begins to deviate, they start small, but they begin to slide down a slope that leads to greater and more pronounce types of deviance.
42
Slippery Slope: Compromise Point
The of exposure means no going back.
43
Slippery Slope: Slope Progression Example
Free meals
44
Slippery Slope: Pyramid Progression Example
Gratuities
45
Noble Cause Corruption
Police cynicism may lead to feelings that certain illegal actions are acceptable achieve greater good.
Planting evidence, false testimony, falsifying reports.
Dirty Harry Syndrome.
46
Role of Internal Affairs
Investigate.
Adjudicate.
Discipline.
47
Internal Affairs: Investigate
Allegations of officer misconduct, through either reactive or proactive techniques.
48
Internal Affairs: Adjudicate
Adjudicate or submit for adjudication the results of investigations.
49
Internal Affairs: Discipline
Discipline officers whose allegations are substantiated.
| Offenders disciplined, fired and/or prosecuted.
50
Internal Affairs: Testimony Options
Compelled Testimony.
| Voluntary Testimony.
51
Internal Affairs: Compelled Testimony
Departments can compel officers to answer questions as condition of employment.
Refusal can result in termination.
Due to 5A rights, statements cannot be used against officer in criminal proceedings.
Can be used to discipline officer internally.
52
Internal Affairs: Voluntary Testimony
Officers can provide information voluntarily, but information obtained can be used both to discipline and/or prosecute for a crime.
53
Internal Affairs: Garrity Warning
Used in compelled testimonies.
Interviewers required to give employees warning before taking their statement.
Right to be informed of allegations.
Asked questions relating to performance of duties.
Statements may be used against you for disciplining.
Statements cannot by used in court of law.
Can request witness to statement.
If you refuse to answer questions, you will be terminated.
54
Internal Affairs: Suspicionless Searches
Exception to 4A SW requirement.
As a condition of law enforcement employment, employees waive certain expectations of privacy.
Includes company computers, offices, desks, phone calls, emails, cars, drug tests and medical info, financial and privacy matters.
55
Why Ethics are Important to Forensic Science
Police are public servants and behavior influences public trust.
Enforcement cannot succeed without public support.
Ethical people inspire trust.
Public believes to a great extent that police are good, ethical, and do the right thing.
Most of nation's officer are highly ethical.
56
Value and Expectation of Ethical Behavior
Ethics taught in academy training and in-services.
Oath of office incorporates ethical conduct.
Law Enforcement Codes of Ethics.
Statues and policies.
57
Federal Oath of Office
I, [name], do solemnly swear (or affirm) that I will
support and defend the Constitution of the United
States against all enemies, foreign and domestic; that
I will bear true faith and allegiance to the same; that I
take this obligation freely, without any mental
reservation or purpose of evasion; and that I will well
and faithfully discharge the duties of the office on
which I am about to enter. So help me God.
58
Federal Oath of Office: History
Constitution defines role of federal employees.
Article II includes oath president takes.
Article VI requires oath by all other government officials.
Article VI very first law passed by very first congress and set out simple oath.
59
Model Code of Ethics: Key Principles
Respect constitutional rights of all to liberty, equality, and justice.
Keep private life unsullied as example to all.
Exemplary in obeying laws and regulations of department.
Anything heard or seen of a confidential nature confided in an official capacity will be kept secret.
never permit personal feelings, prejudices, aspirations, animosities, or friendships influence decisions.
Enforce law without fear or favor.
Never accept gratuities, engage in acts of corruption, bribery, or condone actions by peers.
Cooperate will legally authorized agencies in pursuit of truth.
Cooperate with public officials and representatives in discharge of their duties.
60
Model Code of Ethics: Respect Rights of All
Case Example: Joyce Gilchrist.
| Overstated evidence and sending innocent people to jail.
61
Model Code of Ethics: Private Life Unsullied
Case Example: FBI couple at sex club.
| FBI forced to rehire them.
62
Model Code of Ethics: Keep Information Confidential
Case Example: Charlestown Courthouse employeed leaked informant information on Facebook and informant was threatened.
63
Model Code of Ethics: Accepting Gratuities and Bribes
Case Example: 3 Tulsa police officers and one ATF agent
64
Model Code of Ethics: Cooperation with Other Agencies
Case Example: Boston Police Department and FBI in public quarrel following congressional hearing after Boston Marathon bombings.
65
Ethics Issues
```
Gifts.
Conflicts of interest.
Misuse of position.
Outside activities.
Post-employment considerations.
```
66
Ethics Issues: Gift Policy
General Rule: May not solicit or accept gift given because of official position or from prohibited source.
67
Ethics Issues: Gifts from Prohibited Sources
1) Source does/seeks to do business with FBI.
2) Source has activities regulated by FBI.
3) Source has interests that may be substantially affected by performance of official duties.
68
Ethics Issues: Gift Policy Exceptions
1) Value $20 or less, not to exceed $50 for calendar year.
Never cash.
2) Gifts based on personal relationship.
3) Discounts/benefits offered to group (all federal/law enforcement employees).
69
Ethics Issues: Gifts from Outside Sources
1) Improperly accepting free access to theme parks and golf courses.
2) Improperly accepting tickets to an event.
3) Improperly accepting travel benefits or attending corporate events.
70
Ethics Issues: Gifts Between Employees Rule
General Rule: Cannot give gift to official superior, nor solicit group to donate gift for official superior.
71
Ethics Issues: Gifts Between Employees Exception
Can give gift on occasions when gifts are traditionally exchanged (birthdays, retirements, vacations, transfers).
Limited $10 or less.
Never cash.
Must be voluntary.
May combine for gift if contributions $10 or less.
72
Ethics Issues: Gifts Between Employees Hospitality Exception
If invited to your supervisor's home for dinner, you may bring traditional gift of hospitality such as bottle of wine or flowers.
73
Ethics Issues: Permitted Gifts
Contribution for birthday cake for superior/co-worker.
Christmas gift exchange.
Contributions for a superior for retirement.
Souvenirs for superior/co-worker upon return from vacation.
74
Ethics Issues: Conflicts of Interest
Financial.
Impartiality on the job.
Outside employment.
75
Ethics Issues: Gifts
From outside sources.
| Between employees.
76
Ethics Issues: Conflict of Interest Policy
General Rule: Avoid situations where your official actions affect or appear to affect private interests, financial or non-financial.
Extends to financial interests of spouse/kids.
77
Ethics Issues: Conflict of Interest Examples
Owning stock in company affected by your job.
| Outside businesses that employ you (support only).
78
Ethics Issues: Conflict of Interest Impartiality on the Job
Focus is on third party perception.
Would reasonable person aware of your situation question your fairness?
Example: Agent is related to company that employs family, or is an attorney.
79
Ethics Issues: Conflict of Interest Outside Employment
General Rule: Should not engage in outside employment that conflicts with official duties.
Part-time employment by support employees permitted subject to existing rules.
Agents not permitted to have outside employment.
80
Ethics Issues: Misuse of Position
Misuse for private gain.
Misuse of Bureau property and time.
Misuse of nonpublic information.
81
Ethics Issues: Misuse of Position Rule
General Rule: May not use position for private gain or for persons/organizations which are personally associated.
82
Ethics Issues: Misuse of Position Examples
Using position/title for coercion in private matters such as argument with neighbor.
Using position/title to give appearance of FBI endorsement of product/person.
Only use official title/stationary for recommending someone you have dealt with in/for federal employment.
83
Ethics Issues: Misuse of Government Property and Time
May make minimal use of most office equipment where cost to FBI is negligible.
BUCARS for official use only.
Take-home use authorized/regulated by FBI regulations.
OCD Internet Use Policy (2005).
84
Ethics Issues: Misuse of Nonpublic Information
May not engage in financial transaction using nonpublic information or allow such information to further private gain of yourself or others.
85
Ethics Issues: Misuse of Position OPR Trends
Misuse of government credit card (unauthorized charges, gasoline/automotive products, making late/non-payments).
Using creds to obtain airline privileges.
Using creds to get out of traffic tickets, intimidate during private altercation, make unauthorized traffic stops.
86
Ethics Issues: Outside Activities
Outside activities.
Political activities.
Fundraising.
Post employment restrictions.
87
Ethics Issues: Outside Activities Rule
General Rule: Should not engage in any outside employment/activity that conflicts with official duties.
Cannot be paid for teaching, speaking, or writing if related to official duties.
88
Ethics Issues: Outside Activities Permitted Political Activities
```
Register, vote, belong to political party.
Express political opinions.
Assist in voter registration drives.
Make political contributions.
Attend political fundraisers.
```
89
Ethics Issues: Outside Activities Non-Permitted Political Activities
Be a candidate in partisan election.
Engage in political activity while on duty.
Use official authority/influence to interfere with election.
Wear political buttons while on duty.
90
Ethics Issues: Outside Activities Fundraising (Outside of Workplace)
Private fundraising outside workplace is permitted provided employees do not use government title/position.
Solicitation not permitted subordinate/person doing business with FBI.
91
Ethics Issues: Outside Activities Fundraising (Inside of Workplace)
Active fundraising within workplace prohibited, except as authorized in connection with CFC or for benefit of fellow employees.
Permissible to place info on fundraising in breakroom for voluntary viewing before/after signing in or on breaks.
Transactions must take place outside workplace.
92
Ethical Issues: Rules of Evidence
Either party entitled to introduce evidence to rebut adversary.
Any competent evidence to explain, repel, counteract, or disprove adversary is admissible.
Includes witness's past violations of department's ethical/regulatory standards that are relevant to witness's propensity to tell the truth or lack of candor.
93
Candor
Open, sincere, honest.
94
Lack of Candor v. Bad Judgement Example
Hoboken SWAT team disbanded due to racy pictures taken during team trip to New Orleans in 2006 to help Hurricane Katrina victims.
Photos showed SWAT and Hooters waitresses holding firearms.
Chief and Lt. also guilty of forcing subordinates to perform work at their homes on police time.
95
Lack of Candor Consequences
```
Not eligible for hire.
Termination of employment.
Prosecution.
Suspension.
Demotion.
Reassignment.
Letters of reprimand.
```
96
Lack of Candor: Hiring
Law enforcement agencies will NOT hire candidates whose background investigation reveals lack of candor.
Not candid in application questions often exposed during background check/pre-employment polygraph.
Automatic "Not eligible for hire".
Biggest mistake: lying about details that will not keep you from being hired (drug use most common).
97
Lack of Candor: Termination of Employment
Fired for falsifying investigative and administrative reports.
Fired for lying to management, internal affairs, other agencies, or in court.
98
Lack of Candor: Prosecution
Prosecuted for falsifying, concealing, or covering up any trick, scheme, device or material fact.
Makes materially false, fictitious, or fraudulent statement/representation.
Makes/uses false writing/document known to contain false, fictitious, or fraudulent statement/entry.
Shall be fined, imprisoned
99
Giglio v. United States (1972)
Giglio requires prosecution to turn over to defense evidence in its possession/control which could impeach credibility of an important prosecution witness.
100
United States v. Henthorn (1991)
Held that government has duty to examine personnel files of law enforcement officers it intends to call as witnesses if defendant requests production of the files, and to turn over Giglio material.
101
Credibility Issue Cases
Giglio v. United States.
| United States v. Henthorn.
102
Discovery Issue Cases
Brady v. Maryland.
| Jenks v. United States.
103
Brady v. Maryland (1963)
Brady requires prosecution to turn over to defense any exculpatory evidence in its possession/control.
104
Jenks v. United States (1957)
Jenks requires government to turn over to defense relevant statements made by government witnesses to government agents.
Jenks Act passed to clarify and limit Jenks.
105
Lack of Candor Consequences: Reassignment
Officers with documented Giglio issues present a dilemma for managers/prosecutors.
Can officer ever be put on stand as witness?
If not, what can they be assigned to do?
106
Fifth Ammendment
Police cannot compel a person to witness against themselves.
Accused does not have to answer police questions during investigations/interrogations.
Accused cannot be forced to take stand at trial.
Only voluntary confessions obtained through due process are admissible.
107
Interrogation: Admissibility
Incriminating statements must be obtained without physical abuse, coercion, threats, duress, or psychological manipulation.
Bluffing allowed.
108
Miranda v. Arizona (1966)
Custody + Interrogation = Warning + Waiver.
| Failure to give Miranda warnings results in confession being inadmissible, including evidence discovered as result.
109
Miranda Rights: Custody
Would a reasonable person believe that they are not free to leave?
If so, that is "custody".
110
Miranda Rights: Interrogation
Direct questioning or behaviors by police that police should know are reasonably likely to elicit incriminating response.
Non-direct questioning, like a conversation between two officers in presence of suspect (functional equivalent).
111
Interrogation: Case Examples
Rhode Island v. Innis (1980).
| Brewer v. Williams (1977).
112
Rhode Island v. Innis (1980)
Officers discussed what might happen if handicapped child found missing shotgun in front of suspect.
113
Brewer v. Williams (1977)
Officers transporting murder suspect discussed that the victim, whose body had not been found, deserved a "Christian burial". In response, suspect led them to body.
114
Interrogation: Rights to Counsel
Escobedo v. Illinois (1964).
Once suspect is in custody and being questioned has asked for lawyer, all questioning must cease.
Attorney cannot invoke right on behalf of client being interrogated.
115
Miranda Warning and Rights
When suspect is taken into custody, they must be warned prior or questioning that they:
1) Right to remain silent.
2) Anything said can be used against them in a court of law.
3) Right to presence of attorney, and if they cannot afford one, one will be appointed for them.
Does not have to be in writing, but most departments have policy to document process.
