Fundamentals Ch. 22

Presumption

-Among the guidelines the jury is required to follow in weighing and applying evidence are those regarding presumptions. -Two types: 1) Conclusive 2) Rebuttable

Review officer or investigator conduct to determine whether

-Arrests have been lawful and searches and seizures werereasonable -Miranda requirements were satisfied in case there is aconfession or other statement involved

The hearsay rule excludes written statements by people not in the courtroom to testify.

-Because the writer's personal knowledge is in his/her head, writing that knowledge makes it secondhand information. -If the out of court assertion is being offered as evidence not to prove the truth of a matter but only to show that it was said, it is not hearsay and thus may be admissible. -This is one of the rare occasions in which the hearsay rule would not be applicable. -EX: A homicide victim may have made threats against the defendant. -These threats can be repeated in court to show the defendant's state of mind when he/she killed the victim and to support a claim of self-defense. -The truth or falsity of the threats is not the issue.

The hearsay rule is based on the recognition that human beings have weaknesses and that the testimony of human witnesses provides the majority of evidence presented to juries in modern trials.

-Because we will continue to rely on the testimony of human beings as the principal source of info for trying cases, the law must continue to impose standards to ensure the most accurate and reliable testimony possible. -Unequivocal application of the hearsay rule to all situations does however, present certain injustices in our modern judicial system. -For this reason, a number of specific exceptions to the hearsay rule have developed.

Corpus Delicti/ Order of Proof

-Court procedures require that the prosecuting attorney prove the existence of the corpus delicti at trial before attempting to show the guilt of the defendant. -The corpus delicti is the combination of all the elements of the crime. -It is only logical that the prosecution be required to show that a crime has been committed before it can begin proving the defendant's guilt. -Trial judges rarely exercise their discretionary power to allow evidence to be submitted to prove a point out of order. -The judge has the prerogative of allowing the introduction of evidence to establish the guilt of the defendant prior to the prosecution's showing the existence of all the elements of the crime. -However, this is done only on rare occasions, when to maintain the order of proof might be a major inconvenience to a particular witness. -Permission is given only on the condition that the prosecution guarantees it will later establish the corpus delicti. -If the guarantee is made and the prosecution later cannot show the corpus delicti, grounds exist for a mistrial or a directed verdict of acquittal.

Weight of Evidence

-Deals with the elements of persuasion and believability -Once evidence has been admitted into the trial, it must be weighed by the jury. -The object of the attorney for either side in a case is to persuade the jury to believe his/her side's view of the facts at issue and the responsibility of the defendant. -The jury must then weigh all the evidence and determine which is the more believable. -Guilt or innocence is then determined. -Weight then deals with the elements of persuasion and believability. -Within certain guidelines, the jury is free to give whatever weight it desires to the evidence presented to it. -The entire judicial system in the U.S. is directed toward persuading the jury to weigh one side more favorably than the other.

First Rule of Evidence

-Designed to set parameters on the preceding definition of evidence. -Because evidence can be anything that has a bearing on the outcome of the case, the first rule of evidence provides that anything is admissible as evidence unless there is some rule that prohibits its admissibility. -This first rule provides that all the other rules of evidence may limit the things that a jury is entitled to hear, see, and decide on. -Most of the rules are stated in negative form.

Court Attire

-In any event, dress should be clean and neat. -If civilian clothes are worn, a degree of formality is appropriate. -Conservative clothes are less likely to offend members of the jury than wild, flashy outfits, even though neat. -Identifying items such as jewelry representing a specific occupation or association membership should be avoided. -Lapel pins from specific civic clubs or tie tacks with emblems of handcuffs or service revolvers should not be worn. -Although these are extremely small points, one can never predict who might be offended. -All the fundamentals pertaining to personal hygiene should be scrupulously observed. -Law enforcement witnesses should be conscious of their demeanor from the time they arrive at the courthouse. -Before trial or during recesses, jurors may be standing around the courthouse. -If an officer makes a bad impression through his/her appearance or actions, this may be remembered by a juror when the officer takes the stand and may adversely affect the credibility of the officer in that juror's mind. -Any actions that could be offensive to jurors are to be avoided. -The law enforcement officer should avoid talking to the prosecutor, court clerks, or judges and refrain from acting overly friendly to anyone involved in the trial. -Although there is nothing inherently wrong with idle talk or friendliness, jurors may perceive it as collusion.

Trial Evidentiary Burden/Burden of proof

-In each criminal case, the prosecution has the responsibility of affirmatively proving the allegations on which it has based its accusation. -This is known as the burden of proof. -The burden of proof rest on the prosecution and never shifts to the defense. -The defendant is never required to prove innocence. -Innocence is presumed. -The state must prove guilt. -Assuming that both the prosecution and the defense present evidence in the trial in support of their theories of the case, the prosecution must establish proof beyond, and to the exclusion of, every reasonable doubt. -The jurors must be convinced that the prosecution has proved the defendant guilty beyond any doubt to which they can attach a reason. -Often only the defendant knows positively whether he/she is guilty or innocent. -Because juries are composed of human beings, they are subject to some doubt in every case and must rely on testimony and physical evidence in reaching their decision. -However, if the prosecution so thoroughly convinces the jurors of the defendant's guilt that they cannot give a reasonable explanation of why they doubt that guilt, then the burden of proof has been satisfied beyond and to the exclusion of every reasonable doubt. -The word "reasonable" is included to separate human fallibility from the alleged infallibility of machines.

Leading questions

-Leading questions are not permitted in direct examination, -They are permitted in cross-examination.

Inference

-Permissible deduction that the jury may make. -Similar to a presumption but differs in that the jury has more latitude in accepting or rejecting an inference. -An inference is a natural conclusion arrived at by deduction, in logical sequence, from given facts. -EX: If fact A—the gun found at the scene of the crime belongs to the defendant—and fact B—testimony by a witness placing the defendant near the scene just before the shots were fired—are both known facts, this is not conclusive proof that the defendant committed the crime. -However, on the basis of these known facts, the jury may logically infer that the defendant did in fact commit the crime. -But it is equally free to reject that inference if it feels that the evidence is not sufficient for that conclusion.

Burden of Going Forward

-Placed on the defense so that it will present evidence that creates a reasonable doubt of guilt -Defense needs to present only enough evidence to overcome the prosecution's contentions and create a reasonable doubt of guilt in the minds of the jurors -Prosecution also has the burden of going forward with evidence

Rebuttable presumption

-Requires that a specific conclusion be drawn unless that conclusion has been dispelled or rebutted by evidence presented to the jury for its consideration. -EX: All persons are presumed sane at the time they commit criminal acts. -This presumption can be rebutted by the introduction of evidence to the contrary indicating insanity. -EX: The presumption that one is innocent until proven guilty

Law enforcement authorities disagree as to whether officers should wear uniforms or civilian clothes to court.

-Some believe a law enforcement officer should always wear a uniform when testifying in court for immediate identification by the jurors. -Others contend that civilian clothing is proper dress, because the uniform presents an authoritarian appearance that may be offensive to the jury. -A third group takes the view that the officer should wear the type of dress—that is, uniform or civilian clothes—worn at the time of the arrest. -Often this decision is largely a matter of departmental policy.

Hearsay Rule

-Stories tend to be changed when they are repeated, making them unreliable and their truthfulness questionable -Testimony in court that repeats what others were heard to say means testifying to a second version of what actually happened -The witness has no personal knowledge of the facts in question. -Thus, the truth of the testimony depends on the truthfulness and the competence of the person from whom the information was heard rather than of the person testifying.

Other reasons for generally excluding hearsay rely on protections guaranteed in the Constitution.

-The 6th Amendment guarantees a defendant the right to be confronted by the witnesses against him/her and the right to cross-examine those witnesses. -Because the person with firsthand knowledge is not present in court, that person cannot be confronted or crossexamined by the defendant.

Admissibility

-The essence of the rules of evidence. -The rules of admissibility protect the trier of fact, a jury, from hearing improper evidence that may be unreliable or untrustworthy and that may prejudice the case unjustifiably against the defendant. -The majority of the rules of evidence deal with what is admissible. -Questions of admissibility are decided by the judge, and these decisions are made outside of the hearing of the jury.

Conclusive presumption

-The jury must follow without alternatives. -EX: When the prosecution creates a reasonable belief in guilt, and the defense does not contradict any of the prosecution's case, the jury must follow a conclusive presumption that guilt has been established and must find the defendant guilty.

Cross‐Examination

-The purpose is to ensure that testimony given under direct examination has been accurate and truthful. -Through cross-examination the attorney attempts to impeach witnesses called by the opposing side. -Impeachment is the process of discrediting or contradicting the testimony of the witness to show that the witness is unworthy of belief. -It is designed to weaken or destroy the effect of the testimony presented under direct examination and thus to destroy the credibility of the witness in the eyes of the jury. -Cross-examination tests the reliability of the witness by attempting to detect whether testimony was intentionally slanted or whether an error or misstatement was made.

Another exception of the hearsay rule deals with reputation

-The reputation of a defendant or a witness in a trial may be questionable. -A 3rd party may testify about what he/she has heard concerning another's reputation. -Because an individual's reputation is representative not of actual character but, rather, of what other people think of that person, the truth of the reputation is immaterial. -But the fact that such a reputation exists is admissible. -EX: If the defendant presents evidence in a trial for assault that he/she is a calm individual, a witness may testify to having heard that the defendant is extremely short tempered. -In these situations, evidence is offered to show only that the statements were made, not that they are true. -Because the witness has personal knowledge, it is not hearsay, and because the statements are not offered for the truth of their contents, they are admissible.

There is one exception to the requirement that the state prove its case beyond reasonable doubt.

-When the prosecution shows sufficient facts to indicate that the defendant more likely did commit the crime than did not, it has a prima facie case. -The prosecution has satisfied its burden of proof if it presents a prima facie case, provided that there is no contradiction by the defense.

Cross-examination tactics used by attorneys vary widely, but they fall into two basic categories.

1) Browbeating 2) Belligerent

Exceptions to the Hearsay Rule

1) Confessions 2) Admissions 3) Spontaneous and excited utterances 4) Dying declarations 5) Former testimony

Risk factors for making an arrest include:

1) Whether the suspect will flee if allowed to remain free 2) Potential danger to others if the suspect is free 3) Hardships imposed on the suspect by early incarceration

Reasons why hearsay evidence is excluded

1.Inaccuracy 2.Unreliability 3.Untrustworthiness

Making the Arrest

Investigators must consider what may be termed risk factors in deciding when to make an arrest

Direct Examination

While the prosecution is presenting its case, the questioning of witnesses it calls to testify on behalf of the prosecution

In most jurisdictions, the scope of cross-examination is limited to matters

brought up during direct examination

When the same witness is questioned by the defense attorney, the process is called

cross-examination.

The rules of evidence are designed primarily to

keep a jury from hearing or seeing improper evidence

If on cross-examination the defense attorney manages to confuse a point raised on direct examination, the prosecutor has the opportunity to conduct a

redirect examination after the defense attorney has completed cross-examination -Likewise the defense later has an opportunity to conduct a re-cross-examination of each witness.