Criminal Procedure Exam 3

testimonial evidence

admissions, confessions and statements by parties involved in the investigation

physical evidence

items and the condition of tangible objects that are collected and or documented

Rule 615

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. This is to prevent a witness from changing anything / making sure the witness stays to their own story

tips for testifying in court

speak in your own / understandable everyday words

Don’t memorize what you’re going to say

difference between oath and affirmation?

oath made under NON-human penalty, affirmation under human penalty

oath “so help you God”

concept of refreshing memory

document everything, it is perfectly ok to study your notes and remind yourself of the case and what you did before you testify in court. ALSO beware of the defense attorney trying to get you to agree to something you are unsure of

pre-trial witness preparation

before a judge: suppression hearings, preliminary hearing, bond hearing

issue addressed in Fry v U.S., and why this is important to FRSC

fry was charged with murder, his lawyer tried to call an expert witness to testify that fry had taken a systolic blood pressure deception test and to testify that fry had passed that test. the lower court however dismissed the test at the trial because without an established place in science, then the test would blur the realm between experimental science and demonstrated science

Daubert v. Merrill Dow Pharmaceuticals: factors to be considered by judges

1. whether the expert’s technique or theory can be or has been tested

2. whether the technique or theory has been subjected to peer review and publication

3. the known or potential rate of error of the technique or theory when applied

4. the existence and maintenance of standards and controls

5. whether the technique or theory has been generally accepted in the scientific community

ALSO remember that judges are responsible for acting as a gatekeeper, in order to exclude unreliable expert testimony

lay witness v expert witness

lay witness is not an expert

expert witness has knowledge that isn’t known among everyday people

lay witness evidence admissibility

1. rationally based on the witness’ perception

2. helpful to clearly understanding the witness’ testimony or to determine a fact in issue

3. not based on scientific, technical, or other specialized knowledge

voir dire process

qualifying questions for the expert witness

rule and rationale behind burden of proof in a criminal trial

prosecutors go first in each stage of the trial

evidence is relevant if?

1. it has any tendency to make a fact more or less probable than it would be without evidence

2. the fact is of consequence in determining the action

relevant evidence is admissible UNLESS ____ says otherwise?

1. U.S. constitution

2. federal statute

3. other rules prescribed by the supreme court

rule 702 & the rules on opinion evidence

witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

1. the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue

2. the testimony is based on sufficient facts or data

3. the testimony is the product of reliable principles and methods

4. the expert has reliably applied the principles and methods to the facts of the case

purpose of jury instructions?

providing general information about the law, burden of proof, and specific laws that apply to the case being heard

what does it mean when one party stipulated to certain facts or evidence?

this is skipping a step in the trial because both parties agree to skipping the step. Remember the example with the photos, both sides agree to stipulate the photos because both sides don’t want to waste hours or days going through each individual 400 photos in order to verify the authenticity of the photos

define evidentiary foundation

using a witness to lay the legal foundation for the admissibility of physical evidence or expert testimony

list all steps in the primary stages of a criminal trial

1. opening arguments

2. presentation of witnesses and evidence

3. closing arguments

4. jury deliberations

5. sentencing

direct examination

the side calling the witness elicits their relevant information through a series of non-leading questions

cross examination

the opposing side challenges the witness or questions their information and findings and may use leading questions

difference of leading vs non leading questions

non leading questions: normal questioning

ex: what is your name?

leading questions: suggesting an answer

ex: your name is John Doe, is that correct?

hung jury

juries disagree and feel they have no hope for reaching a unanimous verdict

polling the jury

either side can request that each juror publicly states how they voted

purpose of a pre-sentence report

provides information on the defendant, criminal history, the impact of the crime itself, etc.

define ethics

study of what constitutes good and bad behavior as they relate to a profession

define police corruption

when officers accept money, goods, or services for actions such as favoritism or looking the other way

slippery slope concept

officers begin to deviate, they do so in small ways, but when they do deviate, the slope leads to greater and greater types of deviance

noble cause corruption

police cynicism may lead to a feeling that certain illegal actions are acceptable to achieve a greater good.

Planting evidence, false testimony, false reports, etc

all tasks performed by the most internal affairs unit

investigate, adjudicate, discipline

key principles of the IACP model code of ethics

1. respecting the rights of all

2. private life unsullied

3. obeying the law and regulations of the department you work for

4. keep confidential things secret

5. don’t allow personal feelings, political beliefs, aspirations, friendships, etc to influence decisions

6. enforce law without fear or favor

7. don’t accept gratuities

8. don’t engage in corruption

9. cooperate with other agencies with legal authority in the pursuit of justice

define rebuttal evidence

evidence which counters that offered by the opponent

define impeachment evidence

call into question the integrity of a witness

Giglio v U.S.

prosecution is required to turn over evidence which could impeach the credibility of an important prosecution witness

U.S. v Henthorn

the government has a duty to examine the personnel files of law enforcement officers it intends to call as witnesses if a defendant requests production of the files, and to turn over giglio material

Brady v Maryland

requires the prosecution to turn over to the defense any exculpatory evidence in its possession

Jenks v U.S.

requires the government to turn over to the defense relevant prior statements made by government witnesses to government agents

prosecution for false statements under 18 U.S.C. 1001

Law enforcement agencies usually terminate employees for lack of candor. Those employees who violate the law can also be prosecuted

possibly even fined, imprisoned not more than 5 years, or if domestic terrorism is involved then no more than 8 years

reassignment

officers with documented giglio issues present a dilemma for managers and prosecutors.

can we put this officer on the stand?

if we can’t, what do we assign them to do