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final exam Flashcards

1
Q

State V Johnson, facts of the case

A

A 19-year-old man was on trial for statutory rape. It was alleged that the
19-year-old had sexual intercourse with a 15-year-old woman. As a result
of the alleged statutory rape the young woman had a baby. As part of the
state’s case in chief, the prosecutor offered the baby as evidence for a
comparative inspection for purposes of identifying the father. (In other
words, to see if the baby looked like the father, the D.)

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2
Q

state v johnson, what did the defense object to?

A

The defense objects to the inclusion of the baby as evidence stating that
the baby will only promote prejudice within the jury against the
defendant.

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3
Q

state v johnson, how did the court rule on the defense’s objection?

A

The court overrules the objection, and the baby is allowed in as evidence.

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4
Q

state v johnson, was the defendant convicted?

A

Defended was convicted to two years in the state penitentiary.

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5
Q

state v johnson, did the defense counsel object when it was time to submit jury instructions?

A

no

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6
Q

state v johnson, why did the defendant appeal the conviction?

A
  • the manner in which the baby was exhibited was highly prejudicial to the D
  • The baby was not old enough to possess “settled features or other
    corporeal indications”
  • there was no probative value as any comparison would be speculative,
    indefinite and uncertain
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7
Q

state v johnson, Is a baby real evidence and relevant to a charge of statutory rape (cites to other court cases)

A

State v Palmberg: he prosecuting witness has the right to testify that she became
pregnant and gave birth to a child as a result of the intercourse she referred to, and, if she had the child in the courtroom , we see no impropriety nor valid objection to her pointing it out and
saying, ‘That is the child I gave birth to as a result of such intercourse.’”
* Statutory rape case that involving a 13 year old girl that testified that she was pregnant as a result of sexual intercourse with her step-father. The pregnancy was allowed in as evidence.

State v. Miller: The court stated, “the fact that a child was born is an absolute showing that a crime was
committed.

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8
Q

what year was state v johnson?

A

1950

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9
Q

state v johnson, how did the court rule on the appeal?

A

affirmed the original courts decision.

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10
Q

what year was frye v united states?

A

1923

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11
Q

Frye test (expert witness)

A

requires general acceptance of scientific theory or practice within the relevant community – only then is the scientific test or procedure admissible as evidence in the trial. Avoids use of “junk science” or questionable principles as evidence.

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12
Q

when was Daubert v. Merrell Dow Pharmaceuticals?

A

1983

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13
Q

Daubert/Kumho Tire test (expert witness)

A

equires that principles used by the expert be generallyreliable (but maybe not yet generally accepted w/I the scientific community).
* General acceptance within the community is one factor, not sole factor
* Decision about soundness of principles made by court, not community
* Followed by federal courts and most state courts

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14
Q

example of a Daubert jurisdiction

A

north carolina

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15
Q

in daubert, what case was overruled?

A

In Daubert the USSC effectively overruled Frye in fed cts, holding that the case law was inconsistent with the applicable evidence rules, namely, FRE Rule 702. The Court held that the twin standards of Rule 702 – relevance and reliability – are incompatible with the stricter “general acceptance” test.

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16
Q

in daubert, the Court emphasized the trial judge’s “gatekeeping responsibility” when admitting expert testimony and listed some factors to consider:

A
  1. Whether the expert’s technique or theory can be tested and assessed for reliability
  2. Whether the technique or theory has been subject to peer review and publication
  3. The known or potential rate of error of the technique or theory
  4. The existence and maintenance of standards and controls
  5. Whether the technique or theory has been generally accepted in the scientific
    community
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17
Q

Under Daubert, the Court encouraged a more liberal approach to admitting expert testimony, stressing the importance of what?

A

subjecting witnesses to rigorous cross examination

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17
Q

FRE rule 702, five requirements for expert testimony

A
  1. Qualified by knowledge, skill, experience, training or education
  2. Specialized knowledge will help jury understand or determine fact in
    issue
  3. Testimony is based on sufficient facts or data
  4. Testimony is product of reliable principles and methods
  5. Witness has reliable applied principles and methods to facts
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17
Q

in crawford v washington, Crawford’s lawyer objected arguing what?

A

that Crawford had the right, under the
Confrontation Clause in the Sixth Amendment, to confront his accuser in court. He argued there was no way to cross examine a tape.
The judge overruled the objection saying that the taped “testimony” did not require cross examination because it was reliable (and wife was unavailable as a witness pursuant to the privilege).

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17
Q

when was crawford v washington?

A

2004

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17
Q

crawford v washington, Court held the 6th A demands

A
  1. Unavailability of the declarant (wife); and
  2. Prior opportunity to cross examine the wife
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18
Q

crawford v washington, USSC held that…

A

Crawford’s 6th A right to confront and cross examine his accuser had been violated b/c of the hearsay that came in on the audiotape. The playing of the wife’s testimony by audiotape prevented
the D from confronting or conducting any cross-examination of the wife.

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18
Q

crawford v washington, was crawford convicted?

A

yes, he was convicted of attempted murder and assault and sentenced to 15 years.

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18
Q

Crawford v. Washington, facts of case

A

On an August night in Olympia, WA in 1999, Crawford’s wife, Sylvia, told
him that a man named Kenneth Lee had tried to rape her. Instead of going
to the police, the drunk and angry Crawfords went to Lee’s apartment.
The two men started a brawl and Michael Crawford stabbed Kenneth in
the stomach. Both Crawford and Sylvia wee arrested and interrogated
separately by the police. Though they gave similar statements there was
one major difference. Crawford claimed he stabbed Kenneth in self
defense. Sylvia said Kenneth was unarmed. That statement was enough to
case doubt on any self-defense argument that Crawford might present in
court.

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18
Q

crawford v washington, Washington state had a law that…

A

prohibited spouses from being forced to testify against each other, so at Crawford’s trial, Sylvia never took the stand. But the
police had taped her interrogation back at the station, and the judge allowed
the prosecution to introduce this tape as testimony that Crawford’s crime was
attempted murder not excused by self-defense.

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18
Q

what happened after the conviction? (appeals)

A
  • Wash State appellate court reversed (reversed b/c of hearsay
    admitted)(Win for Crawford)
  • WA SC reversed (reinstated conviction)(Win for the State)
  • USSC (reversed WA SC)(win for Crawford)
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19
Q

the 6th A’s Confrontation Clause
gives Ds the right to….

A

confront witnesses and cross-examine their testimony.
This includes testimony that the police gather. The Court reasoned that the
Framers intended the Confrontation Clause to prohibit out-of-court
testimony as evidence against D.

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20
Q

when was Davis v. Washington?

A

2006

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21
Q

Davis v. Washington facts of case

A

Female calls 911 to report an assault by her boyfriend who was
under a no-contact order and who had just fled the house. She did not
testify at his trial for assault, but the prosecutors played her 911 call over
his objection at trial.

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22
Q

Davis v. Washington, What is the objection?

A

hearsay

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23
Q

Davis v. Washington, was the D convicted?

A

yes

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24
Q

Davis v. Washington, what happened after conviction? (appeals)

A
  • WA Ct of Apps affirms
  • WA SC Affirms
  • USSC affirms
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25
Q

Davis v. Washington, why was the conviction affirmed?

A

the 911 call was not “testimonial” in nature. Victim was talking to operator (not police), describing events as they were taking place, describing events that needed a police response. Here, statements were necessary to help police resolve the ongoing emergency.

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26
Q

Davis v. Washington, Statements are nontestimonial when….

A

made in the course of police
interrogation under circumstances objectively indicating that the primary
purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

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27
Q

Davis v. Washington, statements are testimonial when…

A

the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

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28
Q

when was Hammon v. Indiana?

A

2006

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29
Q

Hammon v. Indiana, facts of the case/trial

A

Hammon charged with domestic abuse on his wife and when police arrived they took her statements that he’d beaten her. Wife signed an affidavit stating that husband beat her. She did not appear to testify at his bench trial. Over D’s 6th A objection, the trial court admitted the affidavit and
other information wife had given to one of the officers. Officer was also put on the stand to testify what wife/victim said to him and to authenticate her affidavit.

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30
Q

Hammon v. Indiana, how did the USSC rule?

A

USSC ruled that wife’s statements to police were testimonial in nature and
the admission of the stmts into evidence violated the D’s 6th A rights to cross examination and confrontation.
The officer’s questions were directed at determining what had happened and was part of an investigation into alleged criminal conduct. The more formal features of the investigation and affidavit strengthened the testimonial aspects of the testimony given by the police and through the introduction of the affidavit
at trial.
Reversed and remanded.

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31
Q

Steps in a criminal case

A
  1. Arrest and Booking
  2. Complaint and First Appearance
    or
    Indictment or Information
  3. Arraignment
  4. Discovery, exchange of evidence by both side
  5. Trial
  6. Sentencing by the Court
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32
Q

trial steps

A
  1. Opening Statements
  2. Prosecution’s Case in Chief
  3. Prosecution Rests
  4. Defendant’s Case in Chief
  5. Closing Arguments
  6. Jury Instructions and Deliberation
  7. Sentencing by the Court
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33
Q

Types of Evidence

A
  • Testimony
  • Real, tangible, physical,
    documentary
  • Character
  • Intellectual copyright, patent,
    trademark
  • Habits and customs
  • Judicially noticed findings
  • Conviction records
  • Public records
  • Recordings, motion pictures,
    photos, videos
  • Vital statistics/actuarial tables
  • Mental state or condition
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34
Q

Evidence must be (three things)

A
  1. Relevant
  2. Reliable
  3. Competent to be admitted
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35
Q

what is Real evidence?

A

any physical object that can be used to help prove or disprove a fact in a case.

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36
Q

what is evidence?

A

The means of establishing and proving the truth or untruth of any fact
alleged

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37
Q

what is the result of evidence?

A

proof

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38
Q

who is the trier of fact?

A

the jury

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39
Q

what elements make up the burden of proof for the prosecution?

A
  1. Burden of production
  2. Burden of persuasion
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40
Q

when may the defendant have a burden of proof?

A

if offering an affirmative defense

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41
Q

definition of Reasonable Doubt Standard?

A

No exact definition, NO need for absolute certainty.

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42
Q

Circumstantial Evidence

A

Evidence that indirectly proves a fact in issue. Fact finder must draw an inference.

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43
Q

Proving Intent in a Criminal Case, The law recognizes that people….

A

intend the natural and probable
consequences of their deliberate acts

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44
Q

what print evidence can be forensic evidence in criminal case?

A

fingerprints and shoe prints

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45
Q

Defense lawyers use ______ as evidence of reasonable doubt.

A

lack of motive

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46
Q

general rule of Prior Bad Acts

A

a D in a criminal trial must answer for only THAT crime at his trial

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47
Q

why is evidence of prior bad acts or crimes generally inadmissible?

A

Because of unfair prejudice caused in the minds of the jury.

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48
Q

Exceptions to prior bad acts general rule

A

FRE 404(b), “other crimes, wrongs, or
acts” may be used to show motive, opportunity, intent, preparation, plan, knowledge”.

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49
Q

Where NO Inferences Should be Drawn

A
  1. When D asserts the 5th (no inference of guilt)
  2. No stmt by prosecutors that D remained silent after arrest
  3. Where info is protected by rape shield law
  4. Where suspect wants to talk to a lawyer
  5. Cessation of signature crimes after arrest of suspect
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50
Q

Common grounds for appeal?

A

insufficiency of the evidence. Defense argues that there was not sufficient evidence to support the guilty verdict beyond a reasonable doubt.

(this is done in cases that hinge on mostly circumstantial evidence)

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51
Q

Presumptions and Inferences

A

A rule of law that allows a jury in a criminal case to infer or deduce the
existence of a second fact from the first.

(example: where a person has been missing for 3 years with no explanation
(basic fact), the presumed fact arises that the person is deceased at the end of the 3 year period)

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52
Q

______ is the slipperiest
member of the family of legal terms. (McCormick on Evidence)

A

presumption

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53
Q

Corroborative evidence

A

evidence that strengthens or confirms already existing evidence.

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54
Q

Prima facie evidence

A

“at first sight”. the evidence is strong enough to prove something unless someone can prove it wrong. It can also be used to describe something that appears valid at first glance but may need further evidence or information to confirm.

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55
Q

Conclusive evidence

A

evidence that is so strong and convincing that it leaves no room for doubt and settles a question or argument. (ex: DNA of paternity)

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56
Q

Conflicting evidence

A

Evidence from different sources which cannot be reconciled.
example: multiple wills

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57
Q

Cumulative evidence

A

additional evidence that supports a fact that has already been established.
(ex: multiple photos)

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58
Q

Positive and negative evidence

A

evidence that the claim is true (positive evidence) and evidence it is false (negative evidence).
(ex: a witness stating they saw an event vs a witness stating they did not see the event)

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59
Q

Testimonial evidence

A

evidence that can be used in a court proceeding by a witness’ testimony

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60
Q

Tangible evidence

A

physical evidence.
(ex: Items such as weapons, tools, Paperwork like contracts, letters, Electronic items such as hard drives, USB sticks, etc.)

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61
Q

Demonstrative evidence

A

a visual, graphic, or sound aid used to explain or illustrate a witness’s testimony or the presentation of the proponent’s case.
(ex: diagram, chart, photo, video)

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62
Q

Scientific evidence

A

considered to be opinion evidence, which means that it is evidence presented in court by a witness of what he/she believes to be true in regard to the facts of the case.
(ex: crime and coroner’s lab evidence)

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63
Q

US Constitution wanted to…

A

safeguard rights of the accused

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64
Q

Bill of Rights

A

Applicable to the States (through the 14th) and the Feds.
Added to “embody certain guarantees and immunities which were inherited from our English ancestors.”

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65
Q

Most rights found in which amendments?

A

Fifth and Sixth Amendments

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66
Q

Basic Rights

A
  1. Presumption of innocence
  2. Speedy trial
  3. Indictment
  4. Fair (not perfect) trial
  5. Assistance of counsel
  6. Informed of charge
  7. Right to compel witnesses attendance
  8. D can elect not to testify
  9. Confrontation
  10. Free from unreasonable Searches and Seizures
  11. Impartial jury
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67
Q

5th Amendment

A
  • Indictment before GJ (no detention w/o that)
  • Double jeopardy
  • Freedom to Take 5
  • Innocent until proven guilty
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68
Q

6th Amendment

A
  • Fair and Speedy Trial
  • Impartial jury
  • Info about the charges
  • Ability to confront and cross examine
  • Have counsel
  • Fair but not perfect trial (Harmless and reversible error)
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68
Q

1st Amendment issues

A

free speech

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69
Q

4th Amendment issues

A

search and seizure

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70
Q

5th Amendment issues

A

self incrimination

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71
Q

what types of challenges do counselors have during voir dire?

A

Peremptory and for cause challenges

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71
Q

2nd Amendment issues

A

gun rights

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72
Q

Batson v. Kentucky, (1986)

A

held that you may not use peremptory challenges to eliminate jurors based on race

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72
Q

harmless error

A

the verdict wouldn’t change absent the error

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73
Q

If make prima facie challenge case showing jurors were excluded based on race, then the other side must provide a ______ reason justifying the challenge

A

“race neutral”

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74
Q

Juror challenges are designed to ensure…

A

an impartial jury (Guaranteed by 6th A)

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74
Q

Booking Routine administrative procedures

A

fingerprinting, photography, recording of information

(A lawful arrest makes any evidence lawfully obtained during booking
admissible)

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74
Q

A challenge for cause

A

a request to remove a potential juror from a jury panel during jury selection. A challenge is made when there is a specific reason to believe a juror may not be able to be impartial and fair. unlimited in number.

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74
Q

Excusing jurors for cause is an issue in ______ cases.

A

death penalty

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75
Q

significance of Faretta v. CA 1975

A

6th A allows you to act as your own lawyer unless:
1. the request was untimely
2. the D abused the right of self representation
3. The request was made solely for the purposes of delay
4. The case is too complex, or
5. The D is unable to voluntarily and intelligently waive her right to a
lawyer

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75
Q

peremptory challenge

A

a legal right that allows attorneys to remove a certain number of potential jurors or judges without stating a reason. limited in number.

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75
Q

arrest must be based on

A

probable cause
(Arrest warrant guarantees probable cause and avoids evidentiary pitfalls)

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76
Q

significance of Strickland v. Washington 1984

A

A convicted D who claims he was represented by an inadequate or ineffective lawyer must prove:
1. The lawyer’s defense fell below the objective standard of
reasonableness, AND
2. The outcome at trial would have been different.

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77
Q

reversible error

A

the mistake was so significant that the verdict would be different.

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78
Q

True bill

A

(also called true bill of indictment) refers to a decision to indict a criminal defendant by a Grand Jury.

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78
Q

First appearance

A

–Defendant appears before magistrate and informed of charges
–Opportunity to request counsel
–Preliminary hearing (if needed) scheduled

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78
Q

Complaint

A
  • Fed.R.Crim.P. 3: “written statement of essential facts”
    –Filed by federal investigators
    –Evidence does not need to be presented in the complaint
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79
Q

Information

A

Government attorney files a summary of facts and evidence supporting the
charge

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80
Q

preliminary hearing

A

held to hear evidence supporting the Information
-Purpose is to prove that there is probable cause to support charges
-Defendant may cross-examine witnesses, but may not present evidence
-If probable cause is found, case will move forward

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80
Q

Grand Jury Indictment

A
  • Grand jury decision that charges are supported by sufficient evidence
  • Prosecutor presents evidence to grand jury in closed proceedings
  • Proceedings not open to public (secret)
  • Defendant does not attend proceedings
  • If grand jury returns decision of “true bill,” indictment is issued charging defendant with crime
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81
Q

during arraignment, defendant can plead…

A
  1. guilty: same as conviction; defendant is scheduled for sentencing
  2. Not guilty: case is scheduled for trial
  3. Nolo contendere (no contest): same as guilty plea (Cannot be used as evidence of liability in civil trial)
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81
Q

Arraignment

A
  • Once charges are brought, arraignment is held before federal judge
  • Defendant is asked to plead
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82
Q

alfred plea

A

registers a formal admission of guilt towards charges in criminal court while the defendant simultaneously expresses their innocence toward those same charges. defendant admits that there is enough evidence to likely convict them, but they do not admit to the crime itself.

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82
Q

Opening Statement

A
  • Statement by parties to jury at beginning of trial
  • Provides roadmap for evidence jury will hear
  • May include only admissible evidence that will be presented at trial
  • Evidence is presented in light most favorable to presenting party
  • Prosecutor presents opening statement first
  • Defendant can defer opening statement until close of prosecutor’s case
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83
Q

Jurors are selected in a process called

A

“voir dire” (to speak the truth)

Prosecutor, defense counsel and judge question jurors to determine fitness to serve.

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84
Q

Objections:

A

legal challenges to admissibility

85
Q

judges rulings to objections

A
  1. Sustained: judge agrees with objection, excludes evidence
  2. Overruled: judge disagrees with objection; allows evidence
86
Q

Prosecution’s Case in Chief, Evidence must convince jury of defendant’s guilt…

A

beyond a reasonable doubt. must present evidence meeting burden of proof.

87
Q

after Prosecution Rests, Defendant can make a motion for…

A

judgment of acquittal

88
Q

judgment of acquittal

A

– Asks court to find defendant not guilty as matter of law
– Based on failure of prosecutor to present evidence of guilt beyond
reasonable doubt

89
Q

Closing Arguments

A
  • Summary of evidence presented by both sides
  • Federal rules: prosecutor argues first, but has chance to rebut
  • Restricted to evidence actually presented
    –Cannot include evidence which is excluded at trial
    – May not mislead or play on jury’s passions or prejudice
  • This is an argument, not a statement, so it can and should be persuasive
89
Q

Defendant can present evidence to

A

–Rebut the prosecutor’s case-in-chief
–Establish facts that support defendant’s innocence (or why D is not guilty of
the crime charged)
–Prove defenses by a preponderance of the evidence
–Prosecution conducts cross examination of the D’s witnesses

90
Q

Jury instructions (charge to the jury)

A

–Court instructs the jury on the legal issues relevant to the case
–Parties may request instructions on certain points of law
–Instructions may be provided by court in form of “model jury instructions”

91
Q

Deliberation and verdict

A

–Jury may only consider evidence put into record at trial
–Verdict must be unanimous

92
Q

Hung jury

A

jury unable to reach a verdict – results in mistrial and new trial

93
Q

Separate process from determination of guilt?

A

Sentencing by the Court

94
Q

Incarceration

A

–Determined under guidelines of U.S. Sentencing Commission
–Based on offense committed and prior criminal record
–Guidelines can be adjusted based on aggravating and mitigating
circumstances
–Pre-sentencing report provides court with information to determine
sentence.

95
Q

Evidence is developed at three stages in a criminal case:

A

–Crime scene and pre-arrest investigation
–Evidence gathered during arrest
–Evidence gathered after the arrest

96
Q

Death Penalty Cases

A

–Imposed by federal and at least 24 state criminal systems
–Not permitted for crimes not involving death of victim(s)
–Death sentence based on aggravating and mitigating circumstances

97
Q

Pre-arrest Investigation

A

Purpose is to establish probable cause to arrest.

Crime scene investigation
-Search of the crime scene for physical evidence (e.g., blood, weapons,
clothing, drugs, etc.)
–Preservation of physical evidence required if to be used in court.

other
- Witness statements, additional physical evidence

Search warrant
–Provides broadest scope of search at time of arrest

Search incident to arrest
–Preserve evidence located on person or in immediate vicinity of defendant

98
Q

Evidence at Arrest and post-arrest

A

Evidence obtained from suspect
–Interrogations/confessions
–Blood/DNA samples

-Additional witnesses
-Additional physical evidence

99
Q

Double jeopardy prevents

A

retrial after acquittal

100
Q

Speedy Trial Act

A

requires information or indictment within 30 days of arrest and trial within 70 days

101
Q

Limitations period may apply to…

A

starting a prosecution. Five years for most federal crimes.

102
Q

Fed. R. Crim. P. 16:

A

all evidence obtained before, during, and after arrest must be provided to defendant upon request.

102
Q

Prosecutor’s right to evidence developed by defense is _______.

A

limited

103
Q

Spoliation

A

Any document, photo, video, witness statement relevant to a criminal
investigation must be preserved. (Severe sanctions can be levied if not)

104
Q

Statutory retention

A

Some federal and state statutes require retention of records.

105
Q

Sarbanes-Oxley Act

A

retention of corporate records

106
Q

Evidence is “admitted” when

A

it is presented to a jury as part of the record of a trial.

107
Q

what tells us when evidence is admissible or inadmissible?

A

The law of evidence.
- Keep information away from a jury that would not be helpful in deciding the case
- ensures that verdicts are based on fact, not guesses or prejudices

108
Q

Before trial, a party can move to..

A

suppress/exclude evidence which is not admissible (pre-trial motion)

109
Q

if evidence meets requirements……

A

it must be admitted

110
Q

Court will usually admit evidence unless

A

it is objected to
(May have side bar, on or off the record, out of presence of jury)

111
Q

The court may request an ______ from the attorney offering the evidence.

A

offer of proof

112
Q

offer of proof

A

a legal motion that a lawyer makes to a judge during a trial to explain why evidence is relevant and should be admissible.

113
Q

_______ is a question of law that can be reviewed on appeal

A

Admissibility

114
Q

FRE 103

A

objection or motion to suppress preserves admissibility issue for appeal

115
Q

example of plain error

A

judge applied the wrong sentencing guidelines (outdated) and the sentence the D got is longer than allowed for by law

116
Q

Factors Determining Admissibility

A
  1. Competence
  2. Authenticity
  3. Relevance
  4. Hearsay
  5. Privilege
117
Q

Competence

A

This factor applies mainly to testimony. A witness is competent to testify if he or she is capable of communicating the truth and understands the duty all witnesses have to tell the truth.

118
Q

Authenticity

A

This factor applies to real evidence. A piece of evidence is authentic if it is
what the party offering it claims it to be. The authenticity of a piece of evidence must be established before it can be admitted at trial.

119
Q

Relevant evidence can still be excluded based on three exceptions:

A
  1. overly prejudicial: Even if evidence is competent or authentic and relevant, there are times when the probative value of the evidence is outweighed by the prejudicial effect it would have on the jury. Such evidence is not admissible.
  2. Cumulative: Evidence that merely duplicates other evidence w/o adding anything to the jury’s understanding of the case is not admissible.
  3. Against public policy: There are times when evidence is not admissible, not because there is anything wrong with the evidence itself, but because the disclosure would cause harm to society.
    This is mainly applicable in civil cases, such as subsequent remedial measures, compromise offers and negotiations, offers to pay medical expenses, and plea negotiations.
120
Q

Relevance

A

To be admitted, evidence must be relevant to an issue in the case.
Relevance means that the evidence tends to prove or disprove a fact that is an issue in the case.

121
Q

Hearsay

A

this is evidence that contains statements by persons who are not on the
witness stand. If the evidence is being offered to prove that those statements are true, then the statements are generally not admissible, but there are a number of exceptions to this rule.

122
Q

Privilege

A

the law protects certain relationships, such as the attorney-client relationship or the physician-patient relationship, from the disclosure of information that is obtained because of that relationship. This protection is known as privilege, and privileged information is not admissible in court.

123
Q

Weight of the evidence is determined by 3 factors

A
  1. Probative value
  2. Credibility
  3. Corroboration
124
Q

Probative value

A

The degree to which a piece of evidence proves the fact it is offered to prove. (Can be affected by other evidence)

(ex: evidence in a murder case: signed confession by D; murder weapon; piece of cloth at the scene that matches the D’s jacket; bloody glove)

125
Q

Credibility

A

The degree to which a witness or piece of evidence is believed by the jury.

126
Q

Corroboration

A

The degree to which the credibility of a piece of evidence is supported by other credible evidence.
(Corroboration is required to support an out-of-court confession)

127
Q

The weight formula

A

Weight = (probative value + credibility) * corroboration

128
Q

Burden of Proof

A

Degree by which evidence in favor of a position must outweigh evidence against a position.

129
Q

To prove a defense, a _____ is required

A

“preponderance of the evidence”. Evidence in favor must slightly outweigh evidence against.

130
Q

To prove guilt, evidence must prove guilt ________.

A

“beyond a reasonable doubt”. Evidence in favor must far outweigh evidence against.

131
Q

General rule of authentication

A
  • FRE 901: proof that real evidence is what the offering party claims it to be
  • Burden of authentication is on party offering evidence
  • No specific evidence required
  • Any evidence that proves identity of real evidence is sufficient
132
Q

_____ contains examples of methods to authenticate real evidence

A

FRE 901(b).

(Methods are not exhaustive. Any evidence which provides authenticity can be admitted)

133
Q

Rule 901(b)(1): Firsthand knowledge.

A
  • Most effective means of authentication
    Two stages
    1. Establish competence of witness by proving firsthand knowledge of events
    2. Testimony of witness identifying evidence
134
Q

Rule 902(b)(2): Nonexpert authentication of handwriting

A
  • Allows authentication of handwriting based on personal knowledge
  • Witness must be competent based on familiarity with handwriting
  • Once competence is established, witness can testify about identity of
    handwriting
135
Q

Rule 902(b)(3): Handwriting comparison
by expert witness or trier of fact

A
  • Handwriting can also be authenticated by comparison to proven sample
  • Authenticity of sample must be established first
  • Expert witness can be called to compare sample with evidence
  • The jury is also permitted to make the comparison
136
Q

Rule 901(b)(4): Distinctive characteristics

A
  • Real evidence may have unique or distinctive markings or other
    characteristics
  • Such characteristics must be considered “with all of the circumstances”

examples
- Handwriting habits
- Engraved initials or ownership mark
- Letterhead, logos, or other identifying graphics

137
Q

Rule 901(b)(5): Authentication of voice recording

A

Voice recording can be authenticated based on familiarity with voice
Two stages
1. Establish competence of witness by proving familiarity with voice
2. Testimony of witness identifying voice on the recording

138
Q

Rule 901(b)(6): Authentication of telephone conversation

A
  • Requires proof that person spoken to was person he or she thought it was
    Two stages:
    1. Prove the phone number called was correct
    2. Circumstances supporting identification of person called
  • Familiarity with person’s voice
  • Content of conversation
139
Q

The Best Evidence Rule

A
  • Designed to ensure that the most reliable version of real evidence is
    offered
  • Applies to originals and duplicates of writings, recordings, and
    photographs
140
Q

Rule 901(b)(7): Public records

A

Based on where document is kept (public office)

141
Q

Rule 901(b)(8): Ancient documents

A

Proof that document is 20 or more years old

142
Q

Rule 901(b)(9): Proof of process or system

A
  • Proof of process or system used to create evidence
  • Applies to computer printouts and electronic documents
143
Q

Rule 901(b)(10): Authentication by statute or rule

A

evidence can be authenticated by any method allowed by a federal statute or a rule prescribed by the Supreme Court.

144
Q

Rule 902: Self authentication

A

Documents which do not require other evidence for authentication

145
Q

examples of Rule 902: Self authentication

A
  • Certain public documents
  • Newspapers and periodicals
  • Certain commercial documents

Proof of the nature of the document is proof of authenticity

146
Q

Best Evidence Rule – FRE 1002

A

An original writing, recording or photograph is required in order to prove its
contents unless these rules or a federal statute provides otherwise

147
Q

Best Evidence Rule should be called

A

Original Document Rule

148
Q

Exception to BER – FRE 1003

A

Duplicates may be used unless
- Genuine question is raised as to authenticity of original, or
- Admission of duplicates would be unfair under the circumstances

149
Q

BER, Unavailability of original – FRE 1004

A

Where the original is unavailable, other evidence can be used to prove its contents.

Original lost or destroyed
- Does not apply where loss or destruction in “bad faith”

Original not obtainable
- Document cannot be retrieved from person in possession

Original in possession of opponent
- Need to subpoena document from opponent
- If not produced, then other evidence may be admitted

150
Q

FRE 601(a)

A

every witness is presumed competent unless statute or rule provides otherwise

151
Q

Requirement of Personal Knowledge

A

FRE 602: requires evidence that a witness has “personal knowledge” of subject matter of testimony

152
Q

Evidence “laying a foundation” for personal knowledge

A
  • Establish that the witness has a basis for personal knowledge
  • Usually, can be established through the testimony of the witness him or herself
153
Q

Oath

A
  • FRE 603: witness must give an oath to
    testify truthfully
  • Does not require religious belief or
    invocation of deity-
  • Failure to take oath disqualifies witness
    from testifying
154
Q

Voir Dire to establish general competence

A

General competence of a witness may be challenged based on
- Age
- Mental disability

Voir dire – examination to prove that witness
- Understands duty to tell the truth
- Is capable of testifying truthfully
- Most times done in open court, but sometimes in chambers and result put in the record in open court

155
Q

Interpreters for testimony

A
  • Needed when witness does not speak English
  • FRE 604: interpreters must be qualified and take an oath
156
Q

Competence of judges

A

FRE 605: Judges are never competent to testify at trial where they are presiding

157
Q

Competence of jurors

A

FRE 606: Jurors are never competent to testify

Exception: testimony about improper influences or mistake on verdict form

158
Q

Types of Opinion testimony

A

Conclusions about facts drawn by witness.

  1. Lay (non-expert opinions) opinion
  2. Expert opinions
159
Q

Lay opinions

A

FRE 701: Lay witnesses can give opinions which are..
- Rationally based on his or her perceptions
- Helpful to a clear understanding of the testimony
- Not based on scientific, technical, or other specialized knowledge

160
Q

Examples of Lay opinions

A
  • Speed
  • Appearance
  • Distance
161
Q

Expert Witness Qualifications

A
  • Must prove that expert has required knowledge, skills, training, etc.
  • Qualification must be in subject matter of testimony
  • Voir dire: examination about credentials – this is the first part of any expert exam
162
Q

Expert must testify that conclusions are reached…

A

“within a reasonable degree of
professional certainty”

163
Q

Soundness of data, principles and methods tests

A

Frye test, Daubert/Kumho Tire test

164
Q

Where both sides call experts, jurors…

A

are required to decide who to believe

165
Q

Types of witnesses

A
  • Eyewitness
  • Lay witness
  • Expert witness
  • Opinion witness (this can be a lay or an expert witness)
  • Character witness (where character is an issue at trial)
  • Authentication witness
166
Q

Types of examination

A
  • Direct
  • Cross
  • Re-direct
  • Re-cross
167
Q

Direct examination

A

Conducted by: Party calling witness
Scope: Any relevant evidence

168
Q

Redirect examination

A

Conducted by: Party calling witness
Scope: Subjects covered on cross

168
Q

Cross examination

A

Conducted by: Opposing party
Scope: Subjects covered on direct

169
Q

Recross examination

A

Conducted by: Opposing party
Scope: Subjects covered on redirect

170
Q

Leading questions

A

questions that imply the desired answer.

  • Leading questions are generally not allowed on a direct exam
  • Are permitted on cross examinations
171
Q

hostile witness

A

a witness whose sympathies lie with the opposing side

  • Hostile witnesses may be examined with leading questions on direct
172
Q

Unresponsive answers

A

A witness is unresponsive when his or her testimony does not address the
subject matter of the question.

  • Grounds for objection and instruction to answer
  • When the answer contains unresponsive information, the party can move
    to strike that testimony from the record
173
Q

Sequestration of witnesses

A

May be necessary to prevent witnesses from hearing each others’ testimony.

Cannot be sequestered:
- A party or representative of a party
- A witness whose presence is essential to the presentation of a party’s case

174
Q

Factors that affect credibility fall into 3 categories

A
  • Reasonableness
  • Consistency
  • Demeanor
175
Q

Reasonableness

A

Relates to question of whether the testimony makes sense

176
Q

Consistency

A

Internal consistency
- Testimony contradicts other testimony or statements by the same witness
* More damaging: clear that witness lied at some point

External consistency
- Testimony contradicts that of another witness or other evidence
- Less damaging: not clear which testimony or evidence is not credible

177
Q

Demeanor

A

The physical manifestations of a witness’ state of mind
- Mannerisms, voice, gestures, expressions, eye contact, etc.

Non-verbal cues can signal a lack of credibility
- Nervousness, trembling, restlessness
- Lack of eye contact
- Defensiveness or anger

More art than science

178
Q

Focus on credibility must be on ____ not _____.

A

jury; not court.

If jury find witness credible, it doesn’t matter if court doesn’t

179
Q

Courts are reluctant to question….

A

a jury’s decision about which evidence to
believe.
On appeal, issues of credibility will seldom be raised.

180
Q

Impeachment of a witness

A
  • “Impeachment” means calling the credibility of a witness into question
  • Rule 607: A party may impeach any witness, including his or her own
  • Impeachment does not guarantee that the jury will not believe the
    witness
181
Q

Grounds for impeachment, Rule 608: Reputation or opinion evidence

A
  • Witness can be impeached by testimony about his or her reputation for honesty
  • Opinion evidence about the witness’ honesty is also admissible
  • Evidence of specific instances of non-criminal conduct (ie lying) is also
    admissible to impeach
  • Once such evidence is produced, the other party can produce evidence
    showing the witness is honest
182
Q

Grounds for impeachment, Rule 609: Evidence of criminal conviction

A

D: any conviction based on a dishonest act or false statement
- Ex: theft, fraud, embezzlement, perjury

Other witnesses: any conviction punishable by death or imprisonment for more than one year
- No limits to crimes involving dishonesty

  • Convictions not admissible if more than 10 years old, nullified by subsequent
    proceedings, or for a juvenile offense

Remember – this evidence comes in only if the D takes the stand or when a
witness testifies as long as the info is relevant

183
Q

Grounds for impeachment, Rule 610: Religious beliefs or opinions

A
  • Not admissible to impeach
  • Can be admitted if relevant to guilt or an issue other than credibility
184
Q

Grounds for impeachment, Rule 613: Prior inconsistent statements

A

Proof by testifying witness
- Can question witness directly about prior inconsistent statement
- If witness admits inconsistency, no need to allow him or her to explain

Proof by extrinsic evidence
- If witness denies inconsistency, can introduce other testimony/evidence
- Witness must be given an opportunity to explain or deny making the prior inconsistent statement

185
Q

Grounds for impeachment, Other grounds

A

Proof of bias or prejudice against opposing side

Proof of inability to observe subject matter of testimony
- Goes to reasonableness and competence of witness
- Can involve proof of conditions that would interfere with witness’ observation of events

186
Q

Rehabilitation

A

Once a witness is impeached by one party, the other party can attempt to
rehabilitate

186
Q

Preservation of testimony

A

Witness testimony can be preserved only by deposition or in testimony from a prior trial

  • Deposition: an examination of a witness before all parties with the opportunity to
    cross exam
  • Fed.R.Crim.P. 15: depositions allowed only where justified by “exceptional
    circumstances and the interests of justice”
  • Potential unavailability of witness at trial is grounds for taking the witness’ deposition
187
Q

Disclosure of witness statements

A

Fed.R.Crim.P. 26.2: prosecutor and defense have obligation to disclose
certain statements of witnesses other than the Defendant

  • Can include statements made for investigators or at preliminary hearing and other proceedings (including grand jury)
  • Obligation can be enforced by court order
  • Failure to comply can result in striking of witness’ direct testimony from the record
187
Q

how to rehabilitate witness

A
  • Have witness explain any inconsistency in testimony or prior inconsistent
    statements
  • Introduce prior consistent statements to counter effect of prior inconsistent
    statements
  • Impeach the testimony or evidence used to impeach the witness
  • Present reputation or opinion evidence or instance of specific conduct showing the witness is trustworthy
188
Q

What is hearsay?

A
  • An out of court statement offered to prove the truth of the matter
    asserted. FRE 801.
  • Second-hand testimony
  • Reports by one person about what another person said
  • Must be an assertive statement (intention to communicate a thought)
188
Q

examples that are not hearsay pursuant to the FREs, Admission by the Defendant

A

Called admission by a party opponent (in a criminal case this is the defendant).

(ex: W testifies that in D’s trial for armed robbery the D says to him “I have the money that I just took from that old lady.” Stmt is not hearsay.)

189
Q

examples that are not hearsay pursuant to the FREs, Prior Statements of a Witness

A

If the witness has testified under oath (by deposition or in open court) that prior statement, whether consistent or not, comes in as evidence at trial.

189
Q

examples that are not hearsay pursuant to the FREs, Co-Conspirator Rule

A
  • Parties in a conspiracy are partners and all statements any of them say come in against the others.
  • Reason – they are partners and an admission by one is attributable to all
  • Federal prosecutors use this all the time in any kind of case, but especially
    drug cases.
190
Q

Hearsay Rule forbids only statements offered to…

A

prove the truth of the matter asserted. If using statement for something other than truth, it’s not hearsay.

191
Q

Exceptions to the Hearsay Rule

A
  1. Prior Statements Under Oath
  2. Admission Against Interest
  3. Present Sense Impressions
  4. Excited Utterances
  5. Dying Declarations
  6. Recorded Recollections
  7. Records/Govt Docs/Vital Stats (records made in the regular course of
    business)
192
Q

Prior Statements Under Oath

A

W stmt if given at trial (preliminary hearing or depo), under oath, subject
to cross examination are permissible.

193
Q

Admission Against Interest

A

a statement made by a party to the legal
action of the existence of a facts that helps the cause of the other side. An
admission is not limited to words, but it may also include demeanor, conduct, and acts of a person charged with a crime.

(ex: D says that he committed the murder)

194
Q

Present Sense Impression

A

W states what is presently happening - admissible.
- Typically used in civil and med mal cases.

(ex: notes made in medical chart showing possible negligence or upcoding)

195
Q

Excited Utterance

A

Stmts made while witnessing a startling event and circumstances have high tension or emotion. Must be made close in time to the shocking event.

196
Q

Dying Declaration

A

Stmts made near death by one who died. A minority of jurisdictions state that the person confessing only has to believe they are dying, even if they do not end up dying right after the declaration.

197
Q

Recorded Recollections

A

Something written by a witness when events were fresh in that witness’s memory, used by the witness with insufficient recollection of the event and read to the trier of fact. The written material is not admitted as evidence. It’s used only to jog the witness’s memory.

198
Q

Records, Govt Docs, Vital Stats

A
  • Marriage records to prove time, date and names
  • Come in through some type of record keeper
199
Q

Forensic Expert process

A
  • Forensic image
  • Hash value verification
  • Find digital artifacts
  • How they process these “artifacts”
  • The experts here have the forensic evidence and tools that Prof Grose gave them
  • What were their seettings for FTK Imager and Autopsy
  • Taking data and making it human readable
  • How does the expert know there is not more on the thumb drive
200
Q

Goal of the Rules of Evidence

A

to produce the truth

201
Q

Federal Rules of Evidence

A

(FRE) adopted in 1975, amended 2006

202
Q

Rebuttable presumption

A

a presumption that can be overcome by presenting evidence that the presumed fact is not true.
- presumption of legitimacy (paternity in a legit marriage)
- Presumption of sanity (challenged by competency hearing)
- Presumption of identity (person arrested and named in indictment matches person in court)

203
Q

example of Ex of conclusive presumption

A

presumption of innocence. if prosecutor fails to meet the burden of proof beyond a reasonable doubt then the jury finds NG.

204
Q

stipulations

A
  • Agreement between 2 parties that certain facts are true without need for proof
  • Usually limited to facts easily proven and adds little weight to the prosecutor’s case
  • Must be limited to the facts agreed upon
205
Q

Judicial notice

A
  • Court declares a fact to be true
  • Limited to facts that are obvious or of common knowledge
206
Q

Forms of Evidence

A
  1. Testimony
  2. Real evidence
    - Documents
    - Things (physical evidence)
207
Q

real evidence, Documents

A
  • Value as evidence lies in the information it contains
  • Is subject to duplication-
  • More easily preserved than things (ex: OJ’s bloody glove)
208
Q

real evidence, things (physical evidence)

A
  • Value as evidence lies in its physical nature
  • Not subject to duplication
  • Must be carefully preserved against change (ex: OJ’s bloody glove)
209
Q

exception to the attorney-client privilege

A

if in meeting with the client, the attorney is convinced that the defendant is going to commit another crime or endanger someone else.

210
Q

work product doctrine

A

protects from discovery by the opposing party “documents and tangible things that are prepared in anticipation of litigation or for trial. the work product doctrine is also narrower than the attorney-client privilege because its protections extend only to documents and other tangible things that are prepared in anticipation of litigation.

211
Q

Hash value

A

A unique numeric value generated from a specific set of data; even a small change in
the data produces a completely different hash, making it crucial for verifying data integrity.

212
Q

Forensic Image

A

A bit-by-bit replica of a hard drive or similar storage device, ensuring an identical copy for examination without modifying the original data.

213
Q

FTK Imager

A

A digital forensic tool that creates exact copies of hard drives or other storage devices for detailed analysis

214
Q

File System

A

This is the method used to organize and store files and folders on a disk, including
metadata like file creation dates and locations

215
Q

Autopsy

A

A digital forensic software tool used to analyse forensic images and other data, capable of recovering lost files, inspecting file properties, and investigating internet usage

216
Q

Geolocation

A

The process of identifying the physical location of a project or activity, often used
to map where photos or files were created by analysing embedded metadata or IP addresses.

217
Q

Chain of Custody

A

The process of maintaining and documenting the handling of evidence to ensure its integrity throughout an investigation. This includes secure transfer and storage of digital evidence to prevent tampering or loss of information

218
Q

objections, Creating a Material Fact (CMF)

A
  • applies if a witness creates a material fact not included in his or her official record. When making an objection to CMF, should be able to explain to the court what material fact is being created and why it is material to the case.

form: Objection, your honor. The answer is creating a material fact that is not in the record,”
or
“Objection, your honor. The question seeks testimony that goes beyond the scope of the record.

219
Q

objections, Relevance

A

form: Objection, your honor. This testimony is not relevant to the facts of this case. I move that it be stricken from the record,”
or
“Objection, your honor. Counsel’s question calls for irrelevant testimony.”

220
Q

objections, Laying a Proper Foundation

A

Laying a proper foundation means that, before a witness can testify to certain facts, it must be shown that the witness was in a position to know and had personal knowledge of those facts.

form: “Objection, your honor. There is a lack of foundation.”

221
Q

objections, Personal Knowledge

A

A witness may not testify about any matter of which the witness has no personal knowledge. Only if the witness has directly observed an event may the witness testify about it.

form: Objection, your honor. The witness has no personal knowledge to answer that question.”

222
Q

objections, Character Evidence

A

Witnesses generally cannot testify about a person’s character unless character is an issue. Such evidence tends to add nothing to the crucial issues of the case.

form: “Objection, your honor. Character is not an issue here,” or “Objection, your honor. The question calls for inadmissible character evidence.”

223
Q

objections, Opinion of Lay Witness (non-expert)

A

In general, lay witness opinion testimony is inadmissible as the witness is speculating rather than testifying to facts.
It is admissible where it is (a) rationally based upon the perception of the witness (five senses) And (b) helpful to a clear understanding of the testimony.

form: “Objection, your honor. The question calls for inadmissible opinion testimony on the part of the witness. I move that the testimony be stricken from the record.”

224
Q

objections, Expert Witness and Opinion Testimony

A

In a criminal case, an expert may not state an opinion as to whether the defendant did or did not have the mental state in issue.

Objection, your honor. There is a lack of foundation for opinion testimony,” or “Objection, your honor. The witness is improperly testifying to the defendant’s mental state in issue.”

225
Q

objections, Hearsay

A

form: “Objection, your honor. Counsel’s question calls for hearsay.” or “Objection, your honor. This testimony is hearsay. I move that it be stricken from the record.”

226
Q

objections, Leading Questions

A

form: “Objection, your honor. Counsel is leading the witness.”

227
Q

objections, Compound Question

A

form: “Objection, your honor, on the grounds that this is a compound question.”

228
Q

objections, Narrative

A

A narrative question is too general and calls for the witness in essence to “tell a story” or make a broad-based and unspecific response.

form: “Objection, your honor. Counsel’s question calls for a narrative.”

229
Q

objections, Argumentative Question

A

An argumentative question challenges the witness about an inference from the facts in the case. A cross-examiner may, however, legitimately attempt to force the witness to concede the historical fact of a prior inconsistent statement.

form: “Objection, your honor. Counsel is being argumentative.” or “Objection, your honor. Counsel is badgering the witness.”

230
Q

objections, Asked and Answered

A

Witnesses should not be asked a question that has previously been asked and answered.

form: “Objection, your honor. This question has been asked and answered.”

231
Q

objections, Vague and Ambiguous Questions

A

Questions should be clear, understandable, and as concise as possible. The objection is based on the notion that witnesses cannot answer questions properly if they do not understand the questions.

form: “Objection, your honor. This question is vague and ambiguous as to what ‘it’ refers to.”

232
Q

objections, Non-Responsive Witness

A

Sometimes a witness’s reply is too vague and doesn’t give the details the attorney is asking for, or the witness “forgets” the event in question. This is often purposefully used by the witness as a tactic to prevent some particular evidence from being brought forth.

form: “Objection, your honor. The witness is being non-responsive.”

233
Q

objections, Outside the Scope of Cross-Examination

A

Re-direct examination is limited to issues raised by the opposing attorney on cross-examination. If an attorney asks questions beyond the issues raised on cross, opposing counsel may object to them.

form: “Objection, your honor. Counsel is asking the witness about matters that did not come up in cross-examination.”

evidence (2 decks)

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