Evidence

Evidence

Anything that would tend to prove or disprove a fact or legal issue

Purposes for offering evidence in court

To persuade judge or jury to reach a particular decision

To persuade judge or jury on a specific topic (ex. scientific or medical)

Real Evidence (Tangible/Physical)

Items which played an actual part in the incident now being litigated

Trace, Fingerprints, DNA

Documentary evidence

Written documents

ex. Body camera, Statements…

Testimonial evidence

Oral testimony by witness from the witness stand

Demonstrative aid

Evidence created by witness or counsel to illustrate testimony.

Did not play a part in the events of the case, but introduced to assist the jury and understanding what happened

Ex. Ballistic trajectory, blood spatter, reconstruction of events

Direct evidence

Firsthand proof of a material fact

Evidence of a witness gathered by his senses

Circumstantial evidence

Indirect proof of a material fact

Admissibility

Not prohibited due to any specific rule of evidence such as:

1. Exclusionary rule

2. Hearsay

3. Incompetent witness

Relevance

1. Evidence which proves it disproved the material fact involved in a case

2. A question of law to be determined by a judge

Authenticity

Real documentary evidence, which is shown to be genuine and not tampered with

It must be shown that the evidence is

1. what it claims to be

2. untampered with and in substantially the same condition now is when it was seized

Weight

1. The tendency of the evidence to convince or persuade (strength of the evidence)

2. To be determined by the “trier of fact” (judge or jury)

Credibility

1. How believable the evidence or the witness is

2. Determined by the “trier of fact” (judge or jury)

What are the minimal legal test which an item of evidence must successfully pass before it is admitted into evidence?

1. Item must be relevant to the issue involved in the case

2. Item must be authenticated if real or documentary evidence

3. Item must be otherwise admissible

Witness competency

1. The ability of a witness to testify in court

2. General rule: Every witness is competent to testify, provided that he/she has sufficient intelligence and understands the meaning of an oath

Factors regarding witness competency

1. Mental capacity to perceive and recall

2. Intelligence

3. Understanding of an oath

4. Sense of moral responsibility

5. Physical condition

Moral turpitude

Conduct such as lying cheating, stealing deception or tricky.

Misdemeanors such as making false statements, larceny

General rule regarding the accused

Evidence of prior convictions is NOT ADMISSIBLE merely to prove that the accused has a propensity to commit crimes for which he/she is on trial.

Evidence of the defendant prior criminal record of convictions is inadmissible unless the defendant TESTIFIES and then prior convictions may be used to challenge the accused CREDIBILITY.

What questions may be asked when establishing credibility?

Have you ever been convicted of a felony? How many times?

Have you ever been convicted of a crime of moral turpitude? How many times?

Exceptions to the General rule regarding the accused

1. If the defendant “opens the door” during testimony, prosecutor can inquire into the details of the prior convictions

2. If the defendant lies about prior convictions, prosecutor inquire into the details of prior convictions to impeach and prove the defendant testified untruthfully

3. Even if the defendant does not testify, prior convictions may be admissible whenever they are relevant to an element of the present case, subject to the court, balancing the relevance against the prejudicial nature of the prior crimes evidence

General rule regarding a witness other than the defendant

1. Evidence of a witness’ conviction of a felony or a crime of moral turpitude is admissible to challenge their credibility

2. The witness may be asked the NUMBER and the NATURE of the convictions

Before a person can testify as an expert:

1. /She must be deemed “qualified” by a judge as an expert witness in a certain field or area

2. She/she must be questioned as to the following:

   • education and training

   • Experience in Field or subject area

   • Books or articles he/she has written

   • Ever qualified and testified as an expert witness before

   • Specific questions regarding knowledge of the subject matter

Hearsay

Hearsay is an OUT OF COURT statement, whether verbal or written, offered in court to prove the truth of the matter asserted

Hearsay generally not admissible, why?

1. Lack of trustworthiness

2. Lack of ability to cross examine

3. Not made under oath

4. “Trier of fact” Cannot observe witness

Exceptions to the hearsay rule

Confessions

Excited utterances

Business records

Past recollection recorded

Past recollection refreshed

Dying declaration

Prior judicial testimony

Confessions

1. A direct acknowledgment of guilt by the defendant

2. To be admissible, a confession must be:

   1. Voluntary

   2. requires a waiver of Miranda rights in a custodial interrogation setting

Excited Utterances

A spontaneous statement

relating to an exciting event

made while under stress of excitement

caused by the event

Business Records

1. Records of regularly conducted business activity

2. Kept in the regular course of business

3. Offered to the court by a custodian of the records

Dying declaration

Declaration made by the victim about the cause of his/her impending death

while believing his/her death to be imminent

Victim DIES

prosecution is in regard to the death

Prior judicial testimony

1. Witness must be unavailable

2. Prior testimony of witness was under oath

3. Witness, as to former testimony, must testify with reasonable accuracy

4. Issues must be substantially the same in both trials

5. The party against whom the hearsay is now offered, must have been a party in the prior trial

Before real or documentary evidence will be admitted into court, It must be authenticated by showing a proper unbroken chain of custody

The chain of custody must track the evidence from the moment it is first discovered until it is introduced into court.

Must prove that the evidence is in the same UNTAMPERED CONDITION now, as it was when it was first discovered or seized.

Must count for all links in the chain, all officers and others who handled the evidence

Burden of proof regarding a chain of custody

Burden of proof is on the COMMONWEALTH to show an unbroken chain of custody

Steps to establish and maintain a chain of custody

1. Mark the evidence and establish custody

   1. Record date, time, initials, and Badge number

   2. With proper tags, specify where evidence was found or from where it was taken

2. Seal evidence in property bag and mark bag

3. Turn bag into evidence or property room

4. Bring evidence to court and keep it with you

5. Have all persons who handled evidence present in court

6. Minimize the number of officers who handle the evidence

7. Record and document all persons who handle, recover, remove, transport, store, and release any evidence

15.2-1719 Disposal of unclaimed, personal property in possession of sheriff or police

1. the public sale or

2. the retention for used by the law-enforcement agency of any unclaimed personal property

Which has been in possession of its law-enforcement agencies and unclaimed for a period of more than 60 days

3. prior to the sale or retention for use by the law-enforcement agency

   1. Make reasonable attempts to notify the rightful owner of the property

   2. Obtain from the attorney for the Commonwealth in writing a statement advising that the item is not needed in any criminal prosecution

   3. Offer the item to the state treasurer to be sold at auction, pursuant to the Uniform Disposition of Unclaimed Property Act (55-210.30)

19.2-386.29 Forfeiture of certain weapons used in commission of a crime

All weapons used by any person in the commission of a criminal offense shall be forfeited to the Commonwealth by order of the court trying the case upon conviction

The owner may petition the court for the return of any weapon. Upon good cause shown the court shall return the weapon to the owner if

1. the owner did not know and had no reason to know of the criminal conduct

2. and is not otherwise prohibited by law from possessing the weapon

15.2-1721 Disposition of unclaimed firearms/weapons in possession of law-enforcement agencies

After more than 60 days, the law enforcement agency may destroy firearms and other weapons by any means which renders them permanently in operable.

19.2–386.24 Destruction of seized controlled substances or marijuana prior to trial

A law enforcement agency may keep 10 pounds of the substance randomly selected for representative purposes as evidence and destroy any extra.

Prior to destruction of amount over 10 lbs:

1. Photographed the material with identifying case numbers

2. Prepare a report identifying the material

3. Notify the accused by mail (or their attorney) at least 5 days prior to taking the photos to give them an opportunity to be present

4. Notify the accused by mail (or the attorney) at least 7 days prior to the destruction to give them an opportunity to be present

The return or destruction of claimed and unclaimed property is administered and regulated by

The code of Virginia AND your agency general orders and policies

When returning property that was secured by police to the owner

1. Owner needs to sign for the property

2. There should be a detailed description of the property that was released so the person cannot say he/she never received the property

Privilege

A rule of law which

1. permits a witness to refuse to testify or

2. prohibits a witness from testifying without the defendant’s consent

Generally, no person in a legal proceeding has a right to refuse to be a witness, to testify, or to produce any object or writing, except:

1. Fifth amendment

2. Attorney-Client privilege

3. Husband-Wife privilege

4. Priest-Penitent privilege

5. Civil cases

   1. Marital privilege

   2. Doctor-patient privilege

   3. Priest-Penitent privilege

Fifth amendment

All persons have right under the fifth amendment to refuse to answer any questions which could incriminate them

A defendant in a criminal case has a right to refuse to take the stand, and this refusal cannot be commented on by the prosecution

Attorney Client Privilege

A client has the right to prevent his attorney from disclosing the contents of incriminating communication between them

The privilege is the clients privilege to exert

Husband Wife Privilege

A spouse has the right to refuse to testify against their spouse in a criminal case, and to refuse to disclose and prevent the disclosure of confidential communications made between spouses during the marriage

List the ways a witnesses testimony can be impeached

1. Introducing statements of the witness which are inconsistent with his/her present court testimony

2. Showing the witness is biased or prejudice

3. Showing a defect in the witness’ ability or opportunity to see, hear, or remember the incident

4. Testimony from other witnesses that is inconsistent

5. Testimony that the witness has a poor reputation for truth

6. Showing that the witness has been convicted of a felony or a crime of moral turpitude

Brady v Maryland

The government must turn over to the defense, exculpatory evidence that is material to the guilt or punishment of the accused

Giglio v United States

The government must turn over to the defendant evidence that may be used to impeach the credibility of a prosecution witness

United States v Agurs

The duty to disclose exculpatory and impeachment evidence exists, even if the defense does not request it

Kyles v Whitney

A prosecutor has a duty to learn of any favorable evidence known to others, acting on the government’s behalf, including the police