final exam Flashcards
State V Johnson, facts of the case
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.)
state v johnson, what did the defense object to?
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.
state v johnson, how did the court rule on the defense’s objection?
The court overrules the objection, and the baby is allowed in as evidence.
state v johnson, was the defendant convicted?
Defended was convicted to two years in the state penitentiary.
state v johnson, did the defense counsel object when it was time to submit jury instructions?
no
state v johnson, why did the defendant appeal the conviction?
- 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
state v johnson, Is a baby real evidence and relevant to a charge of statutory rape (cites to other court cases)
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.
what year was state v johnson?
1950
state v johnson, how did the court rule on the appeal?
affirmed the original courts decision.
what year was frye v united states?
1923
Frye test (expert witness)
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.
when was Daubert v. Merrell Dow Pharmaceuticals?
1983
Daubert/Kumho Tire test (expert witness)
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
example of a Daubert jurisdiction
north carolina
in daubert, what case was overruled?
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.
in daubert, the Court emphasized the trial judge’s “gatekeeping responsibility” when admitting expert testimony and listed some factors to consider:
- Whether the expert’s technique or theory can be tested and assessed for reliability
- Whether the technique or theory has been subject to peer review and publication
- The known or potential rate of error of the technique or theory
- The existence and maintenance of standards and controls
- Whether the technique or theory has been generally accepted in the scientific
community
Under Daubert, the Court encouraged a more liberal approach to admitting expert testimony, stressing the importance of what?
subjecting witnesses to rigorous cross examination
FRE rule 702, five requirements for expert testimony
- Qualified by knowledge, skill, experience, training or education
- Specialized knowledge will help jury understand or determine fact in
issue - Testimony is based on sufficient facts or data
- Testimony is product of reliable principles and methods
- Witness has reliable applied principles and methods to facts
in crawford v washington, Crawford’s lawyer objected arguing what?
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).
when was crawford v washington?
2004
crawford v washington, Court held the 6th A demands
- Unavailability of the declarant (wife); and
- Prior opportunity to cross examine the wife
crawford v washington, USSC held that…
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.
crawford v washington, was crawford convicted?
yes, he was convicted of attempted murder and assault and sentenced to 15 years.
Crawford v. Washington, facts of case
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.
crawford v washington, Washington state had a law that…
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.
what happened after the conviction? (appeals)
- 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)
the 6th A’s Confrontation Clause
gives Ds the right to….
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.
when was Davis v. Washington?
2006
Davis v. Washington facts of case
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.
Davis v. Washington, What is the objection?
hearsay
Davis v. Washington, was the D convicted?
yes
Davis v. Washington, what happened after conviction? (appeals)
- WA Ct of Apps affirms
- WA SC Affirms
- USSC affirms
Davis v. Washington, why was the conviction affirmed?
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.
Davis v. Washington, Statements are nontestimonial when….
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.
Davis v. Washington, statements are testimonial when…
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.
when was Hammon v. Indiana?
2006
Hammon v. Indiana, facts of the case/trial
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.
Hammon v. Indiana, how did the USSC rule?
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.
Steps in a criminal case
- Arrest and Booking
- Complaint and First Appearance
or
Indictment or Information - Arraignment
- Discovery, exchange of evidence by both side
- Trial
- Sentencing by the Court
trial steps
- Opening Statements
- Prosecution’s Case in Chief
- Prosecution Rests
- Defendant’s Case in Chief
- Closing Arguments
- Jury Instructions and Deliberation
- Sentencing by the Court
Types of Evidence
- 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
Evidence must be (three things)
- Relevant
- Reliable
- Competent to be admitted
what is Real evidence?
any physical object that can be used to help prove or disprove a fact in a case.
what is evidence?
The means of establishing and proving the truth or untruth of any fact
alleged
what is the result of evidence?
proof
who is the trier of fact?
the jury
what elements make up the burden of proof for the prosecution?
- Burden of production
- Burden of persuasion
when may the defendant have a burden of proof?
if offering an affirmative defense
definition of Reasonable Doubt Standard?
No exact definition, NO need for absolute certainty.
Circumstantial Evidence
Evidence that indirectly proves a fact in issue. Fact finder must draw an inference.
Proving Intent in a Criminal Case, The law recognizes that people….
intend the natural and probable
consequences of their deliberate acts
what print evidence can be forensic evidence in criminal case?
fingerprints and shoe prints
Defense lawyers use ______ as evidence of reasonable doubt.
lack of motive
general rule of Prior Bad Acts
a D in a criminal trial must answer for only THAT crime at his trial
why is evidence of prior bad acts or crimes generally inadmissible?
Because of unfair prejudice caused in the minds of the jury.
Exceptions to prior bad acts general rule
FRE 404(b), “other crimes, wrongs, or
acts” may be used to show motive, opportunity, intent, preparation, plan, knowledge”.
Where NO Inferences Should be Drawn
- When D asserts the 5th (no inference of guilt)
- No stmt by prosecutors that D remained silent after arrest
- Where info is protected by rape shield law
- Where suspect wants to talk to a lawyer
- Cessation of signature crimes after arrest of suspect
Common grounds for appeal?
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)
Presumptions and Inferences
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)
______ is the slipperiest
member of the family of legal terms. (McCormick on Evidence)
presumption
Corroborative evidence
evidence that strengthens or confirms already existing evidence.
Prima facie evidence
“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.
Conclusive evidence
evidence that is so strong and convincing that it leaves no room for doubt and settles a question or argument. (ex: DNA of paternity)
Conflicting evidence
Evidence from different sources which cannot be reconciled.
example: multiple wills
Cumulative evidence
additional evidence that supports a fact that has already been established.
(ex: multiple photos)
Positive and negative evidence
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)
Testimonial evidence
evidence that can be used in a court proceeding by a witness’ testimony
Tangible evidence
physical evidence.
(ex: Items such as weapons, tools, Paperwork like contracts, letters, Electronic items such as hard drives, USB sticks, etc.)
Demonstrative evidence
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)
Scientific evidence
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)
US Constitution wanted to…
safeguard rights of the accused
Bill of Rights
Applicable to the States (through the 14th) and the Feds.
Added to “embody certain guarantees and immunities which were inherited from our English ancestors.”
Most rights found in which amendments?
Fifth and Sixth Amendments
Basic Rights
- Presumption of innocence
- Speedy trial
- Indictment
- Fair (not perfect) trial
- Assistance of counsel
- Informed of charge
- Right to compel witnesses attendance
- D can elect not to testify
- Confrontation
- Free from unreasonable Searches and Seizures
- Impartial jury
5th Amendment
- Indictment before GJ (no detention w/o that)
- Double jeopardy
- Freedom to Take 5
- Innocent until proven guilty
6th Amendment
- 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)
1st Amendment issues
free speech
4th Amendment issues
search and seizure
5th Amendment issues
self incrimination
what types of challenges do counselors have during voir dire?
Peremptory and for cause challenges
2nd Amendment issues
gun rights
Batson v. Kentucky, (1986)
held that you may not use peremptory challenges to eliminate jurors based on race
harmless error
the verdict wouldn’t change absent the error
If make prima facie challenge case showing jurors were excluded based on race, then the other side must provide a ______ reason justifying the challenge
“race neutral”
Juror challenges are designed to ensure…
an impartial jury (Guaranteed by 6th A)
Booking Routine administrative procedures
fingerprinting, photography, recording of information
(A lawful arrest makes any evidence lawfully obtained during booking
admissible)
A challenge for cause
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.
Excusing jurors for cause is an issue in ______ cases.
death penalty
significance of Faretta v. CA 1975
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
peremptory challenge
a legal right that allows attorneys to remove a certain number of potential jurors or judges without stating a reason. limited in number.
arrest must be based on
probable cause
(Arrest warrant guarantees probable cause and avoids evidentiary pitfalls)
significance of Strickland v. Washington 1984
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.
reversible error
the mistake was so significant that the verdict would be different.
True bill
(also called true bill of indictment) refers to a decision to indict a criminal defendant by a Grand Jury.
First appearance
–Defendant appears before magistrate and informed of charges
–Opportunity to request counsel
–Preliminary hearing (if needed) scheduled
Complaint
- Fed.R.Crim.P. 3: “written statement of essential facts”
–Filed by federal investigators
–Evidence does not need to be presented in the complaint
Information
Government attorney files a summary of facts and evidence supporting the
charge
preliminary hearing
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
Grand Jury Indictment
- 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
during arraignment, defendant can plead…
- guilty: same as conviction; defendant is scheduled for sentencing
- Not guilty: case is scheduled for trial
- Nolo contendere (no contest): same as guilty plea (Cannot be used as evidence of liability in civil trial)
Arraignment
- Once charges are brought, arraignment is held before federal judge
- Defendant is asked to plead
alfred plea
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.
Opening Statement
- 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
Jurors are selected in a process called
“voir dire” (to speak the truth)
Prosecutor, defense counsel and judge question jurors to determine fitness to serve.
Objections:
legal challenges to admissibility
judges rulings to objections
- Sustained: judge agrees with objection, excludes evidence
- Overruled: judge disagrees with objection; allows evidence
Prosecution’s Case in Chief, Evidence must convince jury of defendant’s guilt…
beyond a reasonable doubt. must present evidence meeting burden of proof.
after Prosecution Rests, Defendant can make a motion for…
judgment of acquittal
judgment of acquittal
– Asks court to find defendant not guilty as matter of law
– Based on failure of prosecutor to present evidence of guilt beyond
reasonable doubt
Closing Arguments
- 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
Defendant can present evidence to
–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
Jury instructions (charge to the jury)
–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”
Deliberation and verdict
–Jury may only consider evidence put into record at trial
–Verdict must be unanimous
Hung jury
jury unable to reach a verdict – results in mistrial and new trial
Separate process from determination of guilt?
Sentencing by the Court
Incarceration
–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.
Evidence is developed at three stages in a criminal case:
–Crime scene and pre-arrest investigation
–Evidence gathered during arrest
–Evidence gathered after the arrest
Death Penalty Cases
–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
Pre-arrest Investigation
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
Evidence at Arrest and post-arrest
Evidence obtained from suspect
–Interrogations/confessions
–Blood/DNA samples
-Additional witnesses
-Additional physical evidence
Double jeopardy prevents
retrial after acquittal
Speedy Trial Act
requires information or indictment within 30 days of arrest and trial within 70 days
Limitations period may apply to…
starting a prosecution. Five years for most federal crimes.
Fed. R. Crim. P. 16:
all evidence obtained before, during, and after arrest must be provided to defendant upon request.
Prosecutor’s right to evidence developed by defense is _______.
limited
Spoliation
Any document, photo, video, witness statement relevant to a criminal
investigation must be preserved. (Severe sanctions can be levied if not)
Statutory retention
Some federal and state statutes require retention of records.
Sarbanes-Oxley Act
retention of corporate records
Evidence is “admitted” when
it is presented to a jury as part of the record of a trial.
what tells us when evidence is admissible or inadmissible?
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
Before trial, a party can move to..
suppress/exclude evidence which is not admissible (pre-trial motion)
if evidence meets requirements……
it must be admitted
Court will usually admit evidence unless
it is objected to
(May have side bar, on or off the record, out of presence of jury)
The court may request an ______ from the attorney offering the evidence.
offer of proof
offer of proof
a legal motion that a lawyer makes to a judge during a trial to explain why evidence is relevant and should be admissible.
_______ is a question of law that can be reviewed on appeal
Admissibility
FRE 103
objection or motion to suppress preserves admissibility issue for appeal
example of plain error
judge applied the wrong sentencing guidelines (outdated) and the sentence the D got is longer than allowed for by law
Factors Determining Admissibility
- Competence
- Authenticity
- Relevance
- Hearsay
- Privilege
Competence
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.
Authenticity
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.
Relevant evidence can still be excluded based on three exceptions:
- 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.
- Cumulative: Evidence that merely duplicates other evidence w/o adding anything to the jury’s understanding of the case is not admissible.
- 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.
Relevance
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.
Hearsay
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.
Privilege
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.
Weight of the evidence is determined by 3 factors
- Probative value
- Credibility
- Corroboration
Probative value
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)
Credibility
The degree to which a witness or piece of evidence is believed by the jury.
Corroboration
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)
The weight formula
Weight = (probative value + credibility) * corroboration
Burden of Proof
Degree by which evidence in favor of a position must outweigh evidence against a position.
To prove a defense, a _____ is required
“preponderance of the evidence”. Evidence in favor must slightly outweigh evidence against.
To prove guilt, evidence must prove guilt ________.
“beyond a reasonable doubt”. Evidence in favor must far outweigh evidence against.
General rule of authentication
- 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
_____ contains examples of methods to authenticate real evidence
FRE 901(b).
(Methods are not exhaustive. Any evidence which provides authenticity can be admitted)
Rule 901(b)(1): Firsthand knowledge.
- Most effective means of authentication
Two stages
1. Establish competence of witness by proving firsthand knowledge of events
2. Testimony of witness identifying evidence
Rule 902(b)(2): Nonexpert authentication of handwriting
- 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
Rule 902(b)(3): Handwriting comparison
by expert witness or trier of fact
- 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
Rule 901(b)(4): Distinctive characteristics
- 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
Rule 901(b)(5): Authentication of voice recording
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
Rule 901(b)(6): Authentication of telephone conversation
- 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
The Best Evidence Rule
- Designed to ensure that the most reliable version of real evidence is
offered - Applies to originals and duplicates of writings, recordings, and
photographs
Rule 901(b)(7): Public records
Based on where document is kept (public office)
Rule 901(b)(8): Ancient documents
Proof that document is 20 or more years old
Rule 901(b)(9): Proof of process or system
- Proof of process or system used to create evidence
- Applies to computer printouts and electronic documents
Rule 901(b)(10): Authentication by statute or rule
evidence can be authenticated by any method allowed by a federal statute or a rule prescribed by the Supreme Court.
Rule 902: Self authentication
Documents which do not require other evidence for authentication
examples of Rule 902: Self authentication
- Certain public documents
- Newspapers and periodicals
- Certain commercial documents
Proof of the nature of the document is proof of authenticity
Best Evidence Rule – FRE 1002
An original writing, recording or photograph is required in order to prove its
contents unless these rules or a federal statute provides otherwise
Best Evidence Rule should be called
Original Document Rule
Exception to BER – FRE 1003
Duplicates may be used unless
- Genuine question is raised as to authenticity of original, or
- Admission of duplicates would be unfair under the circumstances
BER, Unavailability of original – FRE 1004
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
FRE 601(a)
every witness is presumed competent unless statute or rule provides otherwise
Requirement of Personal Knowledge
FRE 602: requires evidence that a witness has “personal knowledge” of subject matter of testimony
Evidence “laying a foundation” for personal knowledge
- Establish that the witness has a basis for personal knowledge
- Usually, can be established through the testimony of the witness him or herself
Oath
- 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
Voir Dire to establish general competence
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
Interpreters for testimony
- Needed when witness does not speak English
- FRE 604: interpreters must be qualified and take an oath
Competence of judges
FRE 605: Judges are never competent to testify at trial where they are presiding
Competence of jurors
FRE 606: Jurors are never competent to testify
Exception: testimony about improper influences or mistake on verdict form
Types of Opinion testimony
Conclusions about facts drawn by witness.
- Lay (non-expert opinions) opinion
- Expert opinions
Lay opinions
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
Examples of Lay opinions
- Speed
- Appearance
- Distance
Expert Witness Qualifications
- 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
Expert must testify that conclusions are reached…
“within a reasonable degree of
professional certainty”
Soundness of data, principles and methods tests
Frye test, Daubert/Kumho Tire test
Where both sides call experts, jurors…
are required to decide who to believe
Types of witnesses
- 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
Types of examination
- Direct
- Cross
- Re-direct
- Re-cross
Direct examination
Conducted by: Party calling witness
Scope: Any relevant evidence
Redirect examination
Conducted by: Party calling witness
Scope: Subjects covered on cross
Cross examination
Conducted by: Opposing party
Scope: Subjects covered on direct
Recross examination
Conducted by: Opposing party
Scope: Subjects covered on redirect
Leading questions
questions that imply the desired answer.
- Leading questions are generally not allowed on a direct exam
- Are permitted on cross examinations
hostile witness
a witness whose sympathies lie with the opposing side
- Hostile witnesses may be examined with leading questions on direct
Unresponsive answers
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
Sequestration of witnesses
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
Factors that affect credibility fall into 3 categories
- Reasonableness
- Consistency
- Demeanor
Reasonableness
Relates to question of whether the testimony makes sense
Consistency
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
Demeanor
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
Focus on credibility must be on ____ not _____.
jury; not court.
If jury find witness credible, it doesn’t matter if court doesn’t
Courts are reluctant to question….
a jury’s decision about which evidence to
believe.
On appeal, issues of credibility will seldom be raised.
Impeachment of a witness
- “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
Grounds for impeachment, Rule 608: Reputation or opinion evidence
- 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
Grounds for impeachment, Rule 609: Evidence of criminal conviction
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
Grounds for impeachment, Rule 610: Religious beliefs or opinions
- Not admissible to impeach
- Can be admitted if relevant to guilt or an issue other than credibility
Grounds for impeachment, Rule 613: Prior inconsistent statements
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
Grounds for impeachment, Other grounds
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
Rehabilitation
Once a witness is impeached by one party, the other party can attempt to
rehabilitate
Preservation of testimony
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
Disclosure of witness statements
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
how to rehabilitate witness
- 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
What is hearsay?
- 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)
examples that are not hearsay pursuant to the FREs, Admission by the Defendant
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.)
examples that are not hearsay pursuant to the FREs, Prior Statements of a Witness
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.
examples that are not hearsay pursuant to the FREs, Co-Conspirator Rule
- 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.
Hearsay Rule forbids only statements offered to…
prove the truth of the matter asserted. If using statement for something other than truth, it’s not hearsay.
Exceptions to the Hearsay Rule
- Prior Statements Under Oath
- Admission Against Interest
- Present Sense Impressions
- Excited Utterances
- Dying Declarations
- Recorded Recollections
- Records/Govt Docs/Vital Stats (records made in the regular course of
business)
Prior Statements Under Oath
W stmt if given at trial (preliminary hearing or depo), under oath, subject
to cross examination are permissible.
Admission Against Interest
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)
Present Sense Impression
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)
Excited Utterance
Stmts made while witnessing a startling event and circumstances have high tension or emotion. Must be made close in time to the shocking event.
Dying Declaration
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.
Recorded Recollections
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.
Records, Govt Docs, Vital Stats
- Marriage records to prove time, date and names
- Come in through some type of record keeper
Forensic Expert process
- 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
Goal of the Rules of Evidence
to produce the truth
Federal Rules of Evidence
(FRE) adopted in 1975, amended 2006
Rebuttable presumption
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)
example of Ex of conclusive presumption
presumption of innocence. if prosecutor fails to meet the burden of proof beyond a reasonable doubt then the jury finds NG.
stipulations
- 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
Judicial notice
- Court declares a fact to be true
- Limited to facts that are obvious or of common knowledge
Forms of Evidence
- Testimony
- Real evidence
- Documents
- Things (physical evidence)
real evidence, Documents
- Value as evidence lies in the information it contains
- Is subject to duplication-
- More easily preserved than things (ex: OJ’s bloody glove)
real evidence, things (physical evidence)
- Value as evidence lies in its physical nature
- Not subject to duplication
- Must be carefully preserved against change (ex: OJ’s bloody glove)
exception to the attorney-client privilege
if in meeting with the client, the attorney is convinced that the defendant is going to commit another crime or endanger someone else.
work product doctrine
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.
Hash value
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.
Forensic Image
A bit-by-bit replica of a hard drive or similar storage device, ensuring an identical copy for examination without modifying the original data.
FTK Imager
A digital forensic tool that creates exact copies of hard drives or other storage devices for detailed analysis
File System
This is the method used to organize and store files and folders on a disk, including
metadata like file creation dates and locations
Autopsy
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
Geolocation
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.
Chain of Custody
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
objections, Creating a Material Fact (CMF)
- 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.
objections, Relevance
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.”
objections, Laying a Proper Foundation
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.”
objections, Personal Knowledge
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.”
objections, Character Evidence
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.”
objections, Opinion of Lay Witness (non-expert)
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.”
objections, Expert Witness and Opinion Testimony
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.”
objections, Hearsay
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.”
objections, Leading Questions
form: “Objection, your honor. Counsel is leading the witness.”
objections, Compound Question
form: “Objection, your honor, on the grounds that this is a compound question.”
objections, Narrative
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.”
objections, Argumentative Question
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.”
objections, Asked and Answered
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.”
objections, Vague and Ambiguous Questions
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.”
objections, Non-Responsive Witness
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.”
objections, Outside the Scope of Cross-Examination
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.”
