Crim Law final

4th amendment

U.S. citizens are protected from unreasonable searches of a person's property; no warrants shall issue but upon probable cause

What amendment intertwines with the 4th amendment?

5th Amendment right against self incrimination

Probable cause

requirement in 4th amendment; Courts usually find probable cause when there is a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search); every step until trial uses probable cause standard
--> standard + signed by law enforcement and judge

What governs the method of execution of the warrant?

Reasonableness

If you hide a murder weapon in a friend’s house, do you have standing to object to a warrantless search???

NO (not your house; homeowner can object)

What does the 4th amendment protect?

protection of privacy rather than property; meant to protect against arbitrary arrests as well as unreasonable searches

Types of warrants

“No-Knock” vs. “Knock and Announce” (identify as “Police”, announce intent and allow reasonable time for occupants to allow entry)

4th Amendment: Exclusionary Rule

enables courts to exclude incriminating evidence from being admissible at trial upon proof the evidence was procured in violation of a constitutional provision: 4th Amendment (fruit of the poisonous tree); prevent law enforcement from violating citizens’ Fourth Amendment rights

Good Faith Exception

law enforcement violates a citizen’s Fourth Amendment rights, BUT has acted in “good faith,” courts sometimes refrain from suppressing evidence; Purpose of this exception is NOT to punish law enforcement where it acts in good faith

Terry Stop

A lawful stop can turn into probable cause to arrest; traffic stop for running a stop sign and see firearm on passenger seat in plain view (possession of unlawful weapon)

Abandoned property left at a scene

Cannot claim a reasonable expectation of privacy for abandoned property; warrantless search will be reasonable under theory of abandonment

Carpenter v U.S.

“Historical cellphone records” warrant required; FBI obtained the approval of a magistrate on reasonable grounds, but not probable cause, to obtain the transactional records of 16 phone numbers (limited info in this case vs. exhaustive chronicle of location info collected by carriers)

Riley v California

“Historical cellphone records” warrant required; Court found that the contents of a cellphone are both qualitatively and quantitatively different from other objects in a person’s pockets and there is time to get a warrant; search of cellphone without warrant is violation of 4th amendment

Matter of the Search of a Residence in Oakland, California #4-19-70053 N. Dist. CA

could not compel suspect to unlock cellphone w/ thumb; judge rejected not because it was an unreasonable search under the 4th Amendment, but because it violated the 5th Amendment right against self-incrimination

D.C. 10-Day Rule (Rule 41)

requires officers to execute a search warrant and inventory the evidence recovered within 10 days; if it expires, need to get a new warrant

What if officers violate 10 day rule or if a non-officer executes the warrant?

basis to suppress evidence

IF evidence = material & exculpatory, THEN

bad faith destruction = due process violation; as long as evidence was destroyed for a legit purpose, e.g., DNA testing, destruction of evidence under government retention policies, then no violation has occurred
--> Trombetta, Arizona v Youngblood, U.S. v Anderson

Duty to preserve exculpatory evidence

Government must preserve evidence that is 1) material & 2) exculpatory
-->Materiality: Gov. had reason to know exculpatory value & evidence cannot be replaced by other reasonably available evidence
--> Bad faith: tough to show; requires showing intentionality (by direct or circumstantial evidence) rather than mere carelessness

OSAC Crime Scene/Death Investigation Scientific Area Committee (SAC)

Develops standards and guidance for crime scene investigation (search, documentation, collection, preservation)

What if statute says you can take suspect’s DNA sample upon arrest?

Judiciary gets final say!; Supreme Court in MD v. King said yes!

Jury vs. bench trial

Jury trial: jury is the “trier of fact" and jury hears the case; Judge renders all ruling and instructions; open to the public

\
Bench trial: Judge is the “trier of fact” and hears the case/evidence; Judge renders all rulings and instructions; open to the public

\--> prejudicial testimony can simply be disregarded

Due Process of Law-5th (federal) & 14th (states) amendment

extended privileges and rights to state and all state criminal cases

Procedural:
-fundamental fairness-is process fair?
-opportunity for hearing pre-trial
-confrontation & cross-examination
-discovery/Adequate notice of what expert witness might testify
-basis of decision
-availability of counsel

Substantive:
-Does the government have the right to bring action on the first place?

Selective incorporation

doctrine through which first Bill of Rights are made applicable to the states gradually through Due Process & equal protection clause of the 14th Amendment
--> “…No state shall deprive any person of life, liberty, or property…”

General intent vs. specific intent crime

General:
-intent to commit act; no further mental state, intention or purpose beyond willingness to commit crime
-easier to prove
-second-degree murder, manslaughter, assault, battery

Specific:
-committing act AND doing it with an additional intent or objective
-intent becomes a mental element
-harder to prove
-first-degree murder, assault with intent to kill
-“intentionally”, “knowingly”, “purposefully” or “willingly”

Types of mens rea

1. Intentionally- purposefully (intentionally) if he/she acts with the intent that action causes a certain result --> 1st deg. murder

2. Knowingly- knowingly if he/she is aware that conduct will result in certain circumstances --> 2nd deg. murder

3. Recklessness- recklessly if he/she is aware of a substantial risk that a certain result will occur as a result of actions --> 2nd deg. murder or manslaughter

4. Criminally negligent- negligently if they should have been aware of a substantial and unjustifiable risk that a certain consequence would result from their actions --> manslaughter

Can the defense erect inconsistent defenses?

YES! -Defense of ID (wasn’t me!), BUT if it was me, I was legally insane at the time I committed the crime

\-If it's ID, defense will challenge suspect's DNA being present or their print on murder weapon, etc. but if it's a self-defense argument, they would embrace those same conclusions

General denial defense

defendant creates reasonable doubt/failure of proof
-video surveillance, voice recordings, alibis, witnesses or other forms of tangible proof

Affirmative defense

defendant admits guilt but offers additional evidence to justify/excuse actions at time of offense
-defendant raises a new issue/burden of proof never shifts (except w/ insanity defense-first prove guilty then prove insanity by different standard)
-self-defense, alibis, mental illness, insanity, intoxication

Competency to stand trial

Whether a defendant has a rational and factual understanding of the proceedings against him and whether he can consult with his lawyer and assist in preparing his defense (Dusky v U.S.)
--> Standard: involves “here and now” NOT defendant’s mental state “at the time of the crime”

Dusky Standard

1) Defendant needs to understand the players, i.e., Judge, Prosecutor, defense counsel, etc.

2)Must understand the charges

3)Must be capable of assisting defense attorney

Is competency to stand trial constant or fluid?

fluid; defendants can be “incompetent” when off their medication, BUT can be made competent w/ institutionalization where staff can ensure the defendant is taking appropriate medication

Watson case

malingering (in the competency context)
--> Lankward Harrington was malingering in the insanity context

Insanity defense

-asks the question was the defendant legally sane at the time the crime was committed?
-unlike competency – which involves the here and now – sanity is limited to the time at which the crime is committed
-typically tied to a serious underlying mental disease or defect (schizophrenia, bipolar disorder, schizoaffective disorder (hybrid bt. 1 & 2))
-“insane” only if the defendant is unable because of severe mental disease or defect to appreciate the nature and quality or wrongfulness of an act

When is the only time in the criminal process that the burden of proof shifts?

insanity defense (must prove defendant insane (typically by a preponderance of the evidence))

Can defendant assert innocence & simultaneously assert insane at time of crime? Can defendant assert inconsistent defenses?

YUP to both (It wasn’t me! BUT if it was me, I was insane.)
--> defendant can even request separate juries for the 1) guilt & 2) insanity phases of the trial!

Insanity defense- Rule 12.2 (U.S. v. Brown)

1st step: jury must find beyond a reasonable doubt that defendant committed the offense charged

2nd step: jury may consider whether defendant was “not guilty by reason of insanity”

Can mental disease or detect otherwise constitute a defense besides insanity?

NOPE

Frendack Inquiry

a trial court must make a three-part inquiry whenever there is evidence that raises a substantial question about a defendant’s sanity at the time of the offense but the defendant expresses the desire not to pursue an insanity defense:

1. whether the defendant is presently competent to stand trial

2. if so, whether based on present mental capacity, the defendant can intelligently and voluntarily waive the insanity defense and has done so (3) if not, whether the court sua sponte should impose the insanity defense based on evidence of the defendant’s mental condition at the time of the alleged crime

Pre-trial procedures

defendant arrested/complaint filed --> preliminary hearing --> grand jury returns indictment --> discovery proceedings --> motions filed

Procedure during trial

trial --> opening statements --> government's prosecutor's case --> presentation of evidence --> defendant's case --> government's rebuttal case --> closing argument --> jury instructed --> deliberations --> verdict

Pretrial motions

Many Legal issues regarding the admissibility of certain evidence is resolved through pre-trial motions, such as:
-Motion to Suppress Defendant’s Confession as involuntary (in violation of Defendant’s 5th Amendment rights)
-Motion to Suppress Forensic Evidence (as unreliable in general or “as applied” in the case)
-Motion to Suppress Physical Evidence (violation of Defendant’s 4th Amendment Rights)
-Motion to sever charges as unrelated or prejudicial
-Motion to for speedy trial (implicating Defendant’s Due Process Rights)
-Motion to prevent government from consuming DNA evidence

What is the goal in criminal discovery?

the protection of a defendant’s constitutional right to a fair trial; ensure that the government has complied with its obligation to produce all Brady (exculpatory) and Giglio (impeachment) information in advance of trial

Rule 16:
-Laboratory report
-Expert’s qualifications
-Summary of intended testimony
-Laboratory or expert’s case file
-Dispute resolution/contamination
-Other info that may arise on direct/cross
i.e. DNA transfer

Criminal Discovery: Rule 16 expert witness

At the defendant’s request, the government must give to the defendant a written summary of any testimony that the government intends to use under rules 702, 703, or 705 of the Federal Rules of Evidence during its case-in-chief at trial…The summary provided under this subparagraph must describe the witness’s opinions, the bases and reasons for those opinions, and the witness’s qualifications

Does the defense have to turn over information that is inculpatory to the defense?

NOPE; Defense can withhold information inculpatory to the defense. Prosecution only learns of Defense expert if defense decides to call the expert at trial. By contrast, the prosecution MUST produce ALL exculpatory information in its possession.
--> if defense does DNA testing and it’s their client’s DNA on the murder weapon, they don’t need to provide that info to the government, but the government needs to provide everything to them (one-sided)

Brady v. Maryland

the government’s withholding of evidence that is material to the determination of either guilt or punishment of a criminal defendant violates the defendant’s constitutional right to due process
--> Prosecution didn’t turn over everything in that case, so conviction was overturned

What is Brady Material?

any exculpatory or potentially exculpatory material must be turned over to the defense
--> prosecution still tries to not turn over personal info, names, phone numbers, etc. because witnesses can be killed

T/F: Brady is broadly defined

true; Vaughn defined Brady information as “information of a kind that would suggest to any prosecutor that the defense would want to know about it because it helps the defense, and in this context, the defense perspective controls”

Vaughn v. U.S.

defined Brady information very broadly; held that prosecutors play a dual role at trial; they must advocate for the government with earnestness and vigor, but also have an obligation under Brady to assist the defense in making its case

What does the court consider to determine on appeal whether the Government, through its representatives in the trial court, has violated its obligations under Brady?

(1) whether the information in question is favorable to the accused
(2) whether this information was possessed and suppressed by the government, either willfully or inadvertently
(3) whether that information was “material,” i.e., whether there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different
* If evidence makes defendant look more guilty, it isn’t a Brady violation

Vaughn makes if the information withheld by the Government was favorable to the defendant, suppressed, and material, then reversal of a defendant’s conviction is required, irrespective of the good faith or bad faith of the prosecution (typically leads to re-trial)

Giglio v. U.S.

“little Brady” meaning that it was potential impeachment information pertaining to a specific witness
-pertains to individual credibility of an individual witness

Impeachment information

Vaughn made clear that ”impeachment information” does not have a lesser standing in the context of the government’s Brady obligations to disclose information favorable to the defendant; rather, the jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence

T/F: Giglio material is broadly defined

true; parties entitled to know anything about testifying witness that could impact the credibility of the witness’s testimony
-prior to trial, prosecutors request information from the police department or laboratory regarding any witnesses it intends to call at trial
-impeachment information is not limited to an employees conduct at work; can encompass any personal conduct that calls into question a witness’s credibility, such as prior convictions!

Example of Giglio information

eyewitness to crime that wear glasses but hasn’t had their prescription updated recently

3 rules of witness conferences

1. Don’t assume your attorney understands your report! -prosecutors NEED to understand your report and conclusions (limitations too) so that they don’t screw it up during their opening/closing statements (you won't be there) and cause mistrial, etc.

2. Don’t assume your attorney will schedule adequate time to prepare your testimony! --get attention of attorney during pre-trial so you can properly prep attorney and they can prep you

3. Don’t assume your attorney has put together demonstrative exhibits to help illustrate your conclusions to a jury! -very limited time to clearly and accurately communicate your conclusions to a jury; PowerPoints, visual aid, etc. (especially with DNA)

You must alert the attorney to any landmines contained therein, such as:

-conflict resolution
-mistakes
-contamination/use of expired kit (that required re-testing)
-differing opinions
-sample switch

Admissibility and weight of scientific evidence in court

Admissibility:
-decision to permit the trier of fact to hear or see the evidence (judge)

Weight:
-evaluating of the evidence by the trier of fact (jury)

*Oftentimes admissibility challenges filed on eve of trial, prosecutors are often unprepared, analysts often called in a pre-trial hearing to defend the science!!!!
-has led to catastrophic results in some cases

FRE 702 Expert Testimony

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

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact at issue
(b) the testimony is based on sufficient facts or data
(c) the testimony is the product of reliable principles and methods
(d) the expert has reliably applied the principles and methods to the facts of the case

*could be that methodology is reliable, but defense might argue that we can’t trust anything coming out of that lab

Daubert v Merrell Dow Pharmaceuticals

ISSUE: What test governs the admissibility of expert scientific testimony?
HELD: Federal Rules of Evidence supersede Frye

-Expert testimony is not required to be generally accepted by the scientific community. Admissibility must be based on the relevance under 702 and reliability of the evidence.

What factors did Daubert/Supreme Court provide to guide reliability determinations?

1. Can and has the technique been tested?

2. Has the theory or technique been subject to peer review and publication?

3. Does the methodology have a known or potential rate of error?

4. Is there a standard controlling the technique’s operation?

5. To what degree is the technique accepted within the scientific community? (FRYE)

*Non-exclusive list, but most Courts limit inquiry to these 5 factors; can come up on cross examination

What qualifies someone as an expert for a Daubert Hearing?

1. Is expert trained as an expert in the field? --> Has person conducted scientific research in the field?

2. Is expert published in peer-reviewed scientific journals and in the methodology at issue? --> ideally expert will have conducted “error rate” studies and conducted these studies with applied scientists

2009 NAS report and PCAST (policy reports)

both spurred considerable Frye & Daubert Litigation, few judges have been persuaded, both were short on science & make bold findings/recommendations

Tibbs v. Harris

Superior Court Judge and federal district Court Judge came to completely different results based on largely the same evidence!

Judge Edelman’s Ruling: Tibbs

-toolmark identification did not satisfy four of the five reliability factors outlined by the Supreme Court in Daubert
-permitted government to testify and give a “general specialized” opinion as follows:
--> “Based on the level of agreement in individual characteristics, the recovered firearm cannot be excluded as the source of the recovered cartridge casing” (the firearm may have fired the recovered casing)
--> completely ignored heatmap study (false positive rate= 0%)

Judge Contrera’s Ruling: Harris

-Government’s proposed expert testimony of firearms expert is reliable and admissible
-PCAST concerns are subject for cross examination, not exclusion of admissibility
-all research is valuable (Budowle affidavit); peer review weighs in favor of admissibility
-2008 Ballistic Imaging Report and 2009 National Academy of Science Report are both outdated due to intervening scientific studies (opinion must fall within DOJ’s Uniform Language for Testimony of Reports (DOJ-ULTR) for the Forensic Firearms/Toolmark Discipline)

Daubert/702 Case Study: Side by Side Comparison

Judge Edelman’s focus: PCAST (0 FATM examiners)
Judge Contreras’ focus: Peer-reviewed scientific studies
*Know your judge! Flexibility & discretion has led to contradictory rulings

PCAST

\-evaluated scientific disciplines in terms of what it coined “foundational validity”

\-critical of firearms & toolmark identification (and DNA analysis) which it viewed through the lens of “black box” studies, which PCAST defined as pairwise studies, e.g., comparing 1 casing/bullet to 1 casing/bullet

\-PCAST theorized that false positive rates go up exponentially when using black box study design as opposed to other study designs such as closed study design where examiners are given a bunch of bullets and casings to match to one-another (post-PCAST studies proved this shat wrong)

Is there a way to measure % of time examiners render an “inconclusive” when, in fact, the ground truth = Identification?

Yes = “sensitivity” = where ground truth = ID what % of time did trained examiners make ID?
-studies showed almost 100% of the time this was true

Does an inconclusive determination for ID sound logical for firearms and toolmarks?

Not to Scurich dude; quality assurance mechanism ensures samples have sufficient markings for comparison; said inconclusive should not qualify as a correct answer

\-theorized bullets/casings used for studies are “pristine” and therefore mark perfectly; conclusions= only ID or exclusion (Scurich “pristine sample” theory; significantly inflated rate of false positives by including inconclusive determinations)

\-this psychologist had no experience in the field

\-histogram showed that marks on casings do NOT always clearly delineate between ID and exclusion (Edelman ignored)

\-almost 100% of the time examiner received sample, they made an ID (wasn't addressed by Edelman)

PCAST’s Evaluation of scientific validity: mixtures

“…STRmix appears to be reliable within a certain range…Specifically, these methods appear to be reliable for three-person mixtures in which the minor contributor constitutes at least 20 percent of the intact DNA in the mixture and in which the DNA amount exceeds the minimum level required for the method.”
-weird though because most labs validated 3, 4, and 5-person mixtures
-also 20% could be different in different situations (super low-level of DNA--> 20% could be a couple of skin cells whereas 20% contribution in a crime scene where 3 people are bleeding--> blood is rich in DNA--> 20% becomes much more abundant) (shouldn't be about percentages, should be about amount of DNA)

Why did the Sixth Circuit reverse Gissantaner?

In discussing Daubert factors, make clear that scientific evidence must be the “product of reliable principles and methods” and must have been “reliably applied” in the case.

-STRmix has been: tested, peer-reviewed (NOT require “independent” author), low error rate (measured known non-contributors), generally accepted by labs

Sixth Amendment

“in all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him"
--> look into the eye of an accuser / have counsel cross-examine

Is a forensic scientist an accuser?

the answer used to be no for many years; much debate about whether an ”objective” forensic scientist in a lab = accuser?; historically, can testify to the report of others until Crawford in 2004

Crawford v. Washington

Confrontation Clause applies to “witnesses” against the accused, meaning those who “bear testimony” and testimonial statements of witnesses are not allowed, where the declarant does not appear at trial unless unavailable to testify and the defendant had had a prior opportunity for cross-examination.”

U.S. v. Raymond Jenkins

1st CODIS hit in D.C. in 1999; FBI did DNA analysis
--> home invasion; killer cut himself
--> defense made a Crawford objection: demanded that the government call every tech who played a role!
--> FBI refused to provide techs for trial but allowed defense to question them and decide whether to call them in their case
--> convicted after 2nd trial (10 yrs later)

Trilogy of Crawford rulings

Melendez-Diaz, Bullcoming, Williams v. Illinois (5-4 decisions)
--> all decided after Jenkins! 5-4 decisions
--> test= testimonial vs. non-testimonial

Melendez-Diaz v. Massachusetts (2009)

35 States & 6 federal Circuits had allowed admission of lab reports w/out testimonial support (notice & demand statutes); tox certificates are testimonial evidence prepared for the purpose of criminal trial and requires confrontation; NOT a business exception

Bullcoming v. New Mexico (2011)

Supervisory toxicologist (who did not observe analysis) testified which could have violated defendant's 6th amendment (so defendant has right to have counsel cross-examine); it was "testimonial"

Williams v. Illinois (2012)

Plurality decision that failed to establish clear standard for forensics / leaving it to the States to interpret who prosecution must call

Takeaway from Williams v. Illinois

you must be clear w/ your attorney who is required for the prosecution (6th Amendment not reciprocal!)
--> If you touch evidence, you can be called as a witness; need to let them know how many involved (that you weren’t the only one doing the testing for this case)
--> left to state courts and federal circuits

Hearsay

common objection at trial
--> can’t say you heard from the guy walking down the street that the robber was wearing this and this; you need to find the person who said that and bring him as a witness (defendant’s right to confront witness)
--> a statement, other than one made by the declarant testifying at the trial or hearing, offered to prove the matter asserted… not admissible

FRE 803Declarant Available or Not

exceptions to hearsay= present sense impression, excited utterance, then-existing mental, emotional, or physical condition, statement made for medical diagnosis or treatment, recorded recollection, records of a regularly conducted activity, public records, BUSINESS RECORDS EXCEPTION

Business record exception; Are forensic reports business records?

NO; do not fall within this exception to the hearsay rule because they are always prepared in preparation for litigation
--> most prosecutors don't know this rule
--> unless defense has waived, to the court it is hearsay
--> jury should rely on your testimony not your report

Examples of business records

sign in/sign out sheet at the front desk of an apartment; visitors coming to see someone in apartment; accounting ledger; all those can be let in as evidence (not hearsay)

FRE 612 Present Recollection Refreshed

show to witness but not jury (ask if it refreshes recollection)
--> anything can refresh (case notes, reports, prior statements/testimony)
-->that document is hearsay so technically cannot be read from so they should quickly take it away from you
--> once refreshed, remove item and witness can answer question if recollection is refreshed

FRE 803(5) Past Recollection Recorded

-former sworn testimony
-deathbed statements
-statements against penal interest
-where unavailability is wrongfully caused (can’t kill government witnesses to prevent them from testifying)

Can you impeach your own witness?

YUP; if they stray from prior testimony, evasive or hostile; can impeach them with prior sworn testimony (attorney can show witness their statement that the witness said one thing during statement and said something different soon after)
--> prior arrests, body cam footage, statements, inconsistent testimony

Rule 804 Hearsay exceptions:Declarant Unavailable

unavailable as a witness; declarant is privileged, persists in refusing to testify, testifies to a lack of memory on the subject, physical/mental illness/infirmity, unable to procure defendant's attendance

Opening statements

1. The government opens

2. The defense follows or may reserve his/her opening statement

Why must the government make the first opening statement?

In a criminal case, burden of proof beyond a reasonable doubt rests on the government

Who has the burden of proof in a civil case?

the plaintiff has the burden of proof by a preponderance of the evidence (50.001% of evidence on my side= I win)

Purpose of opening statements

establishes theme, bases for the case and presents expert/opinions generally
-must be confined to facts (explanations on what evidence will show); cannot be argumentative (as to which side is right)

Subpoena

under penalty; don't show up --> go to jail (stay in jail until testimony)
--> duces tacum: may require production of documents in which case you don't need to show up

Fact witness

testify to facts, experiences and observations
--> the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702
--> CSI: say you went there and saw cartridges on ground, took pictures, etc.; processing of forensic evidence
--> its likely to satisfy Crawford and establish you did the bench work but you may not be the person that issued the report

Expert witness

testify to facts, experiences and observations
--> a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case
-Ex. drug expert who testifies about quantity for personal use versus quantity of distribution

Can a fact witness be asked a hypothetical question?

NOPE; only an expert witness
--> attorneys are oftentimes permitted to ask hypothetical questions designed to create reasonable doubt

FRE 704

An opinion is not objectionable just because it embraces an ultimate issue (FRE704a)
-exception: Expert may NOT state opinion whether defendant did or did not have the mental state or condition that constitutes an element of the crime charged or of a defense (FRE704b); Those matters are for the trier of fact alone!

FRE 403: Probative Value and Prejudice

Relevant evidence may be excluded if its probative value is substantially outweighed by its danger of an unfair prejudicial effect; waste of resources, mislead jury, confuse them
--> types of evidence typically excluded under this rule are prior bad acts by the defendant

Objections to evidence

hearsay / assumes facts not in evidence / argumentative

• cannot argue in front of jury / arguments at bench

• will either be overruled (counsel may ask question) or sustained (jury should disregard question/response)

• Do NOT say anything after objection (answer if it's overruled-wait until judge tells you); can cause mistrial

Burden of Proof

Probable Cause:
--> fair probability evidence of a crime will be found in a particular place
--> balances law enforcement practices against 4th Amendment

Beyond a Reasonable Doubt: all criminal trials
--> no other reasonable explanation that can come from the evidence

(reasonable suspicion--> prima facie--> substantial evidence--> probable cause--> preponderance (civil)--> clear and convincing--> beyond a reasonable doubt)

Trial procedure

1. Direct Examination by sponsoring attorney -qualifying questions -vior dire (ask question to challenge qualifications) -judge decides whether to accept witness as expert -expert witness instruction (a must! if there are a bunch of experts, can read it once and make sure they acknowledge it) -direct examination

2. Cross-examination by opposing counsel

3. Re-direct by sponsoring attorney