Criminal Evidence 7th Edition

Norman M. Garland

Chapter 1INTRODUCTION TO THE LAW OF EVIDENCE AND THE PRE-TRIAL

PROCESS

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The Legal Definition of Evidence

The Legal Definition of Evidence

o In a legal sense, evidence is any information about the facts of a case, including tangible items, testimony, and documents, photographs, or tapes, which, when presented to the jury at trial, tends to prove or disprove these facts.

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The Technical Definition of Evidence

The Technical Definition of Evidence

Technically, evidence consists of: o Testimony or physical items

presented to the judge and jury that they use to:

o decide the truth of an assertion,o the existence of a fact, and o ultimately the guilt or innocence of the accused in a criminal case.

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Chain of CustodyChain of Custodyo The chain of custody refers to

how evidence is handled, and by whom, from the moment it is found until the moment it is offered in evidence.

o Generally, no item of physical evidence can be introduced at trial unless the law enforcement officer has maintained the proper “chain of custody”of the item.

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The Step-by-Step Development of our Modern Trial by Jury System

The Step-by-Step Development of our Modern Trial by Jury System

The Grand Jury Systemo The Petit Jury (circa

1700 A.D.)o The swearing in of

witnesses.o The right to cross-

examine witnesses.o Hearsay evidence began

to disappear from the judicial process.

o Rules of evidence began to develop.

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Development of the Rules of Evidence

Development of the Rules of Evidence

o Rules of evidence in jury trials are designed to keep some relevant information from the jury.

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Why isn’t all relevant evidence admissible at trial?

Why isn’t all relevant evidence admissible at trial?

o May violate some principle or policy that the law seeks to promote.

o May have been obtained by a law enforcement officer in violation of a suspect's constitutional rights.

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o Today the rules of evidence in most jurisdictions are in the form of a statute or code, meaning that they are laws enacted by a legislative body.

The Forms of Evidence RulesThe Forms of Evidence Rules

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The Federal Rules of Evidenceo By far the most common

codification of evidence law is the Federal Rules of Evidence (FRE).

o The FRE apply in all federal courts throughout the United States, and 43 states have relied upon them as a model in adopting their own evidence codes.

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The FRE in the 90’so Forty-three state legislatures

had adopted the FRE as of January, 2013.

o States that have not yet adopted the Federal Rules include: California, Connecticut, Kansas, Massachusetts, Missouri, New York, and Virginia.

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The Breadth & Scope of the FRE

o The FRE, and their state counterparts, provide guidelines for evidence in all proceedings in court.

o These rules apply equally in civil and criminal matters.

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Forms and Types of EvidenceForms and Types of Evidenceo Real o Demonstrativeo Directo Circumstantialo Physicalo Intangibleo Testimonial

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OVERVIEW OF THE CRIMI NAL JUSTICE PROCESS

o Observation or report of a crime

o Investigationo Arresto Prosecutiono Trialo Sentencingo Appealo Service of

sentenceo Release

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Participants in the Criminal Justice System

o Law enforcemento The prosecution

and defenseo The courts ando Corrections

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The Role of Law Enforcemento The police are

called upon to perform three basic functions:

o (1) enforcing the law;

o (2) maintaining public order;

o (3) providing various public services.

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Federal Law Enforcemento Federal law enforcement agencies

investigate federal law violationso The Federal Bureau of

Investigation (FBI)o The Drug Enforcement

Administration o The Bureau of Alcohol, Tobacco,

and Firearmso ICE (Immigration and Customs

Enforcement)

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Additional Federal Law Enforcement Agencies

o The United States Marshals Serviceo The Border Patrol, United States Park

Serviceo The Bureau of Postal Inspection, and o The Secret Service

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Specialized Fields and PersonnelWithin Law Enforcement

o Ballisticso Fingerprint analysis o Blood stain analysis o DNA analysiso Investigatorso Courtroom personnel (bailiffs,

marshals, or other guards) o Jail personnel o Probation officers, and prison

personnelo Other areas of scientific methodology

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The Prosecutor’s OfficeIt is the job of the prosecutor to:

o Pursue a case developed by the police until the case terminates by trial, guilty plea, or dismissal.

o Decide whether to pursue a formal charge, and, if so, what crime to charge.

o Conduct any plea negotiations, deciding whether to dismiss charges.

o Try the case.

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The Dual Court Systemo There is a dual

judicial system in the Untied States: the federal and state courts coexist.

o The federal court system applies nationwide, and federal courts are located in each state. PhotoLink/Getty Images

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Court Jurisdiction:The Power or the Authority

for the Court to ActFederal courts coexist with individual state court systems.

o Whether a defendant is tried in a federal or state court depends on which court has jurisdiction over the particular case.

o The acts involved in the case must have taken place within or have had an effect within the geographical territory of the court, or there must be some statutory authority for the court's power.

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The Federal Court Systemo There are currently federal trial courts

in each state and thirteen United States Courts of Appeal, arranged by circuit (twelve numbered circuits and one federal circuit).

o The lowest level of the federal court system consists of 94 district courts located in the 50 states (except for the District of Wyoming, which includes the Montana and Idaho portions of Yellowstone National Park).

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Venue vs. Jurisdictiono Venue refers to the neighborhood,

place, or county in which an act is declared to have been done, or in fact happened; and, thus, defines the particular county, or geographical area, in which a court with jurisdiction may hear and determine a case.

o Jurisdiction refers to the power or the authority of the Court to act.o The Distinction should not be overlooked!

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Individual Constitutional Rights in a Criminal Case

The Fourth Amendment to the Constitution: from the Bill of Rights:

o the freedom from unreasonable searches and seizures

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Individual Constitutional Rights in a Criminal Case

The Fifth Amendment Rights:o the right to silence and counsel

during police interrogations (in support of the Fifth Amendment's privilege against self-incrimination);

o the freedom from double jeopardy; o the privilege against self-

incrimination, including a ban against comment by the prosecution on the defendant's failure to testify.

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Constitutional Rights The Sixth Amendment RightsThe Sixth Amendment Rights:

o the right to trial by jury in cases involving serious offenses

o the right to assistance of counsel in any case in which a sentence of more than six months in jail or prison is imposed

o the right to compel witnesses' attendance at trial, to confront them, and to cross-examine them

o the right to a speedy and public trial

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The Eighth and Fourteenth Amendments

o the freedom from cruel and unusual punishment

o the freedom from racial and sexual discrimination in substantive and procedural criminal law (Fourteenth Amendment)

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The Juvenile Court Systemo There is also a

juvenile court system in each state.

o Criminal offenders under a certain age, usually eighteen or sixteen, are dealt with in juvenile courts by way of civil, rather than criminal, proceedings.

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Juvenile Court: Then and Now

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The Correctional Component

o All states maintain state penal institutions (prisons), consisting of state penitentiaries, reformatories, and training facilities for juveniles.

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Prisons: A Growth Trendo There are more

than 600 state prison facilities in the United States, with a total population in all the country's state and federal prisons of an estimated 2.2 million by mid-2010.

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Probationo The probation department

investigates defendants prior to sentencing and provides a pre-sentence probation report to the court.

o Over 4.2 million adults are on probation on any given day in the United States.

o Probation is the most frequent sentence imposed on first-time offenders.

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Parole: After Incarcerationo A person may be sentenced to a

term in prison but released on parole prior to the expiration of the full sentence.

o Supervision on parole is similar to probation supervision.

o Violations of probation and terms of parole lead to hearings that, may in turn, lead to warning, incarceration, or re-incarceration.

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The Pretrial Court Processo Arresto Bailo Plea Bargainingo Charging the Crimeo Arraignment and Pleao Pretrial Motions

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Probable CauseProbable cause to arrest exists when:

oa police officer has enough evidence to lead a reasonable person to believe that a crime has been committed and that the suspect was the one who committed the crime. McGraw-Hill

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The Affidavito The complaint charges the

defendant with a particular crime and is supported by an affidavit, a written statement sworn under oath, in which the officer states the facts within his or her personal knowledge that support the complaint.

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Bailo Most suspects are entitled to

release after arrest and booking, either on the accused's own recognizance or on bail.

o In less serious cases, this release can be approved at the station house.

o In more serious cases, the judge decides conditions for release at the initial appearance.

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Types of Bailo Recognizance is a promise by a

person to appear in court. o Bail is a deposit of cash, other

property, or a bond, guaranteeing that the accused will appear in court.

o A bond is a written promise to pay the bail sum, posted by a financially responsible person, usually a professional bondsman.

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The Preliminary Hearingo The preliminary hearing

is the stage in which the judge considers the prosecution's case to decide whether there is probable cause to believe the defendant committed the crimes charged.

o If so, the defendant is held to answer to formal charges in the form of a grand jury indictment or an information.

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The Indictment or the Information

o The grand jury indicts.

o The prosecutor files an information.

o Each will formally charge the defendant.

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The ArraignmentAt the arraignment, the defendant can enter a plea of:

o guiltyo not guiltyo nolo

contendere (no contest), or

o stand mute McGraw-Hill

Pre-Trial Motionso Motion to

Suppresso Motion for

Severanceo Motion for

Change of Venue

o Discovery Motions-Brady Motion

o Motion for Bill of Particulars

o Competency Motion

o Motion for Expert Appointment

o Motion to Dismiss

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Pre-Trial Issues for Law Enforcement Professionals

o Law Enforcement Officers heavily involved at pre-trial level.

o Investigation can continue after trial has started.

o Organize, Review, and Summarize all Reports

o Understand concept of laying foundation testimony

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