RULES OF EVIDENCE FINAL EXAM PREP

WHAT IS COMPETENT EVIDENCE?

"Catch all" term: includes anything not found in relevant, reliable evidence. For example: Privileged communications, Fourth Amendent violations.

BRADY V. MARYLAND, 373 U.S. 83 (1963)

"The Brady Rule." Prosecution must disclose potentially exculpatory evidence to defendant.

WHAT ARE THE EXCEPTIONS TO THE EXCLUSIONARY RULE AND WHAT THEY ENTAIL?

(1) The "inevitable discovery" doctrine requires police to show the evidence they obtained by using illegally obtained evidence or statements would certainly have been discovered by the police in an investigation that did not rely on the illegal evidence or statements. (2) The "independent source" doctrine requires the police to show the challenged evidence was in fact discovered by an alternate source or investigation, and neither the source nor the investigation used any part of the illegally obtained evidence or statements. (3) The "attenuation" doctrine requires a showing that the time between the improper police conduct and the subsequently discovered evidence was sufficiently lengthy to dissipate the "taint" of the illegal conduct.

NORMAN CONQUEST

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U.S. CONSTITUTION ARTICLE VI "SUPREMACY CLAUSE"; 10TH AMENDMENT

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VOIR DIRE

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WILLIAMS V. FLORIDA (1970)

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WHAT IS A PRIMA FACIE CASE?

A civil or criminal case that is so strong that the opponent must respond with rebutting evidence to avoid losing the case.

WHAT IS AN AFFIRMATIVE DEFENSE?

A defense that admits the defendant committed the crime charged but asserts that the defendant should not be convicted.

STATE THE REQUIREMENTS OF THE U.S. SUPREME COURT'S RULE FOR LOST OR DESTROYED EVIDENCE.

A failure by the government to preserve evidence violates due process only if done so in bad faith, the evidence possesses some exculpatory value apparent to the government when it was lost or destroyed, and the defendant cannot independently obtain comparable evidence.

EXCLUSIONARY RULE

A judicial rule that makes evidence obtained in violation of the U.S. Constitution, state or federal laws, or court rules inadmissible.

WHAT IS A GRAND JURY?

A jury that hears evidence presented by the prosecution and determines whether to charge persons with crimes; used in federal and many state criminal proceedings.

NEWS REPORTER'S PRIVILEGE

A privilege that does not exist in common law; created by statutes in many states. Unless a state has a statute creating the privilege, news reporters have no general absolute First Amendment privilege and right not to reveal sources of news articles when ordered by a court.

WHAT IS A MOTION TO SUPPRESS EVIDENCE?

A written or oral request to a judge to keep out evidence at a trial or hearing; often made when a party believes the evidence was unlawfully obtained.

THE ADVERSARIAL SYSTEM

American criminal courts: Facts in opposition (Prosecution v. Defense); "Set the parties fighting." Arguments. Criminal trials are fact finding; truth determination. Determined by jury.

INEVITABLE DISCOVERY RULE

An exception to the exclusionary rule where illegally discovered evidence would certainly have been discovered legally.

PASSAGE OF TIME RULE (ATTENUATION)

An exception to the exclusionary rule where the "taint" from the improper conduct is dissipated over a significant period of time after the improper conduct.

DEFINE OPEN FIELD.

An unoccupied or undeveloped area outside of the curtilage; objects found there may be used as evidence.

DERIVATIVE EVIDENCE RULE

Another term for the fruit of the poisonous tree doctrine.

GONZALES V. RAICH, 545 U.S. 1 (2005)

Commerce Clause gave Congress power to apply federal drug laws to wholly intrastate use of controlled substances.

THE DANGEROUS PATIENT EXCEPTION TO THE PSYCHOTHERAPIST PATIENT PRIVILEGE

Communications by a dangerous patient are not privileged.

WHAT IS COMPETENT EVIDENCE?

Competent evidence is any relevant and reliable evidence that is not excludable for some other reason.

WHAT ARE PRESENTMENT JURIES?

Courts began to impanel groups of local residents to fact-find (grand juries); their purpose was to inform the justices of crimes committed by other residents.

EXPLAIN THE CRIMINAL COURT PROCESS.

Criminal cases begin with a criminal complaint filed in misdemeanor crimes, or indictments in felony cases where grand juries are used. After arrest, the defendant is arraigned before a judge or magistrate, a plea is taken, and the case is bound over for trial. A preliminary hearing is usually held, where a judge decides only if sufficient evidence exists to justify a trial.

WHAT IS RELEVANT EVIDENCE (RULE 401)?

Direct or circumstantial evidence. Tendency to prove fact of consequence "more or less probative." For example: drug case; evidence of excessive money in a bank account.

FRUIT OF THE POISONOUS TREE

Evidence obtained legally through the use of evidence obtained illegally.

HOW DOES FEDERALISM APPLY TO CRIMINAL JUSTICE?

Federalism as applied to criminal justice means the federal government may pass criminal laws only in the specific areas delegated to the federal government by the U.S. Constitution. States have the power to pass criminal laws in all other areas, unless such laws conflict with rights protected by the Constitution.

THE PSYCHOTHERAPIST-PATIENT PRIVILEGE

For a patient to qualify for this privilege, the patient must seek the treatment or diagnosis of a licensed psychotherapist for treatment of mental or emotional conditions, including drug addiction.

WHAT ARE THE REQUIREMENTS OF THE ATTORNEY-CLIENT PRIVILEGE?

For the attorney-client privilege to exist, the client must seek the professional legal services of an attorney and have the intention of establishing an attorney-client relationship. Applies only to confidential communications made within the attorney-client relationship.

WHAT ARE THE REQUIREMENTS OF THE PHYSICIAN-PATIENT PRIVILEGE?

For the physician-patient privilege to exist, the patient must have consulted the physician for treatment or diagnosis for possible treatments. Where such conditions exist, it is immaterial who employs or pays the physician. If the physician under these circumstances calls in other medical doctors to aid in the treatment or diagnosis, any discloses made to any of the physicians are also privileged.

WRIT OF CERTIORARI

Formal notice from the U.S. Supreme Court to a lower federal court or state court that has been accepted for review by the U.S. Supreme Court.

WHAT IS DISCOVERY?

Formal procedures used by the prosecution and defense attorneys to gather documents, witnesses, and other evidence.

STATE THE ROLE OF THE EXCLUSIONARY RULE FOR EVIDENCE OBTAINED IN AN IMPROPER SEARCH.

If a search is made without a search warrant and in violation of the Fourth Amendment, all evidence derived from the search, including derivative evidence, must be suppressed. If the search was made under a search warrant, but the terms of the search warrant were not followed exactly, evidence discovered in the search may not be subject to exclusion if the police error did not affect the privacy rights of the defendant.

STATE THE ROLE OF THE EXCLUSIONARY RULE FOR INCRIMINATING STATEMENTS PROCURED IN VIOLATION OF THE DUE PROCESS CLAUSE.

If involuntary statements are obtained by police the Due Process Clause is violated, and the statements and any derivative evidence obtained from information in the involuntary statements is excluded.

WHAT IS AN ACCUSATORIAL SYSTEM?

In the accusatorial system, suspects cannot be required to testify, and the prosecution has the duty to develop evidence of guilt from other sources.

WHAT IS A CONDITIONAL GUILTY PLEA?

It is used when a defendant seeks to preserve the right to appeal a ruling of the trial judge. A defendant who enters any of the other guilty pleas loses practically all rights to appeal many aspects of the case.

WHAT IS JUDICIAL NOTICE?

Judicial notice relieves parties in criminal and civil trials from the duty of introducing witnesses, documents, and other evidence to prove uncontroverted facts. Evidence of well accepted facts may be introduced without proof; a judicial shortcut.

LIST THE "PRIVILEGES" AVAILABLE TO THE GOVERNMENT AND GOVERNMENT OFFICERS.

Law enforcement officers may refuse to disclose the name of a confidential informant, though the privilege is limited and can be overcome by due process claims by a defendant. Government may refuse to reveal military or diplomatic secrets, and the president may refuse to reveal confidential communications or correspondence. The proceedings of grand juries are secret.

MAGNA CARTA (1215)

Limitations on sovereign power; jail based on accusations. The Great Charter signed by King John of England and his barons in 1215. The Magna Carta created the first standards for arresting and imprisoning those accused of crimes.

PLAIN VIEW AND THE FIVE HUMAN SENSES

Most plain view cases occur when an officer, who is where he or she has a right to be, sees contraband or evidence of a crime. However, plain view is not limited to visual observations. Any of the five human senses may provide information that makes it "immediately apparent" to the police that the object is evidence of a crime.

THE NEWS REPORTER'S PRIVILEGE NOT TO REVEAL THE SOURCE OF THE INFORMATION

Most states have enacted a news reporter shield law or have have established protections for news reporters. These laws generally have exceptions, such as when a life is at risk or in a situation that generally have exceptions, such as a terrorist attack.

STATE THE PRESENT STATUS OF THE JOURNALIST PRIVILEGE.

Most states have some form of a journalist privilege, though in some the privilege can be overcome if the prosecution can show the information claimed as privilege can not be obtained from any other source, and there exists a "compelling" reason for its discovery. The U.S. Supreme Court has not recognized a journalist privilege under the First Amendment, but a few lower federal courts have done so in civil cases.

EXPLAIN THE USE OF ORDEALS TO DETERMINE GUILT OR INNOCENCE.

Ordeals were a medieval method of proof that was an appeal to God to determine guilt or innocence. For example: handling hot irons, plunging hand in boiling water.

UNITED STATES V. LEON (1984)

Police officers executed a search warrant that they believed to be valid but was defective. The evidence obtained under the defective warrant was ruled to be admissible because the police believed in good faith that the search warrant was valid.

WHAT ARE PRIVILEGES USED FOR?

Privileges are apply only to prevent the use of testimony in a judicial proceeding.

WHAT IS RELEVANT EVIDENCE?

Relevant evidence is evidence that has a tendency to make a contested fact more or less probable than if the evidence is not admitted.

WHAT IS RELIABLE EVIDENCE?

Reliable evidence is evidence that possess a sufficient degree of likelihood that it is true and accurate.

WHAT IS RELIABLE EVIDENCE?

Reliable evidence possess a significant degree of believability. Likelihood of truth and accuracy (unreliable evidence is inadmissible). For example: statements about what someone else observed at a crime scene.

HABEAS CORPUS

Relief from unlawful detention from government. "Bring the body to the Court" impact worldwide; U.S. Constitution Article I, Section 9.

STATE THE ROLE OF THE EXCLUSIONARY RULE FOR EVIDENCE OBTAINED AS A RESULT OF A VIOLATION OF THE MIRANDA RULE.

Statements made without a proper Miranda warning must be suppressed. Evidence, including physical evidence, obtained from voluntary, unwarned statements is not excluded.

THE CLERGY-PENITENT PRIVILEGE

Statutes ordinarily define clergy as a minister, preist, rabbi, or other similar functionary of a religious organization, or a person reasonably believed to be so by the penitent consulting him or her. Because of moral and ethical reasons, ministers, priests, and rabbis would nor ordinarily reveal confessions and confidential disclosures made to them. The privilege establishes a legal protection against being forced to testify on a witness stand about confidential disclosures made to them.

WHAT IS THE PRIVILEGE AGAINST SELF-INCRIMINATION?

The 5th Amendment privilege against self-incrimination is the only privilege that has been incorporated into the U.S. Constitution and many state constitutions. No person shall be compelled in any criminal case to be a witness against himself. The privilege can be asserted y a person to refuse to answer questions "in any proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.

WHAT IS THE ALFORD GUILTY PLEA?

The Alford guilty permits the defendant to enter a guilty plea without admitting guilt.

STATE THE REQUIREMENTS FOR THE BRADY RULE.

The Brady Rule requires the prosecution to disclose exculpatory information or evidence to the defendant, even if a request for such information is made not made. It includes evidence that goes to the credibility of a government witness, such as evidence the witness has made inconsistent statements to investigators. A violation of The Brady Rule does not occur unless the evidence withheld is material and a reasonable probability exists that the result in the trial might have been different if the evidence had been disclosed to the defendant.

THE FIFTH AMENDMENT

The Fifth Amendment contains privilege against self-incrimination.

THE FOURTH AMENDMENT

The Fourth Amendment requires probable cause to arrest and to issue a search warrant. Forbids "unreasonable searches and seizures."

EXPLAIN THE IMPORTANCE OF THE MAGNA CARTA.

The Magna Carta was an important limitation on the rights of English Kings, including how criminal trials were to be held. It profoundly influenced the drafters of the Declaration of Independence, and served as the beginning point for many of the individual rights in the Bill of Rights.

THE SIXTH AMENDMENT

The Sixth Amendment makes it a requirement that the accused shall enjoy the right to be confronted with the witnesses against him/her and obtain witnesses in his favor. May compel their appearance by use of subpoenas. The accused shall enjoy the right to be informed of the nature and cause of the accusation. Provides that the accused shall enjoy the right to a speedy and public trial. Right to assistance of counsel, if the defendant cannot afford an attorney, one will be provided by the state or federal government.

IDENTIFY HOW THE U.S SUPREME COURT MADE THE BILL OF RIGHTS APPLICABLE IN STATE COURT CRIMINAL CASES.

The U.S. Supreme Court made the Bill of Rights, the first 10 Amendments to the Constitution, applicable to the States through the doctrine of "selective incorporation." Using the due process clause of the Fourteenth Amendment, which is binding on the States, the Supreme Court over time incorporated the rights in the first 10 amendments into the Fourteenth Amendment, and thus binding on the States.

THE HONEST MISTAKE RULE

The U.S. Supreme Court's ruling that courts must "allow some latitude for honest mistakes that are made by officers in the dangerous and difficult process of making arrests and executing search warrants.

ATTORNEY-CLIENT PRIVILEGE

The attorney-client privilege protects communications between a client and an attorney that are intended to be confidential. It does not permit an attorney to refuse to produce physical evidence, nor does it protect statements made about present intent to commit a crime. The privilege may be evoked by by an attorney on behalf of the client, but the privilege belongs to the client and may be waived by the client.

BEYOND A REASONABLE DOUBT

The burden that the prosecution must meet in proving guilt in criminal cases; applies to every element of the crime charged.

DEFINE THE DERIVATIVE EVIDENCE RULE.

The derivative evidence rule providence for exclusion of evidence obtained indirectly by police by using information obtained in an illegal search or seizure, or by using information obtained from unlawful incriminating statements.

WHAT IS THE CRIME-FRAUD EXCEPTION?

The exception made to attorney-client privilege when a client consults with an attorney for the purpose of committing a future crime such as perjury; communication and documents relating to this fraud are not protected.

GOOD FAITH EXCEPTION

The exception that makes admissible evidence that is obtained under a search warrant that has a technical error unknown to the law officers executing the warrant.

STATE THE ORIGIN OF THE EXCLUSIONARY RULE.

The exclusionary rule was created by the U.S. Supreme Court as a means of deterring violations by police officers of constitutional and statutory rights, primarily violations of the Fourth Amendment.

WHEN ONE SPOUSE COMMITS CRIMES AGAINST THE OTHER SPOUSE OR CHILDREN

The federal and state marital privilege statutes provide an exception to the marital privilege to permit spouses to testify in criminal courts and divorce courts about beating and other violence against the spouse or children.

WHAT IS A CRIMINAL INDICTMENT?

The formal charge issued by a grand jury, listing crimes believed to have been committed by the named defendant.

THE FRYE TEST

The general acceptance test: scientific evidence presented to the court must result from tests and theories that are generally accepted by a meaningful segment of the associated scientific community.

WHEN DOES A PHYSICIAN-PATIENT PRIVILEGE NOT EXIST?

The general rule is that a physician-patient privilege does not exist when a suspect or defendant is being examined at the request of a court, a law enforcement agency, or a prosecutor.

PARTNERSHIP IN CRIME EXCEPTION TO THE HUSBAND-WIFE PRIVILEGE

The husband-wife privilege does not extend to situations where the wife and the husband are committing a crime or crimes together. For example: the husband-wife privilege was held not to apply where both spouses were involved in trafficking cocaine.

THE HUSBAND-WIFE PRIVILEGE

The husband-wife privilege is directed at privileged communication, but not necessarily the fact that a communication occurred.

STATE THE BASIS AND THE LIMITS OF THE JUDICIAL NOTICE DOCTRINE.

The judicial notice doctrine helps to avoid unnecessary delays in courts. Trial judges may take judicial notice of facts known to the community that are not subject to reasonable dispute and to other information listed in the statutes of the state. This saves time and effort in helping to move both criminal and civil cases along. Judges may not take judicial notice of disputed facts or knowledge, or of knowledge possessed by the judges but not the community generally.

PRESUMPTION OF INNOCENCE

The legal presumption required in all criminal courts that the defendant is innocent until sufficient credible evidence is produced to carry the burden of proving guilt beyond a reasonable doubt.

WHAT IS A NO CONTEST OR NOLO CONTENDERE PLEA?

The no contest or nolo contendere plea allows the defendant not to contest the criminal charge or charges against her. Defendants who believe they will be sued in a civil court of their criminal conduct sometimes seek to use this plea.

THE PHYSICIAN-PATIENT PRIVILEGE

The physician-patient privilege did not exist at common law and therefore exists only in states that have created such a privilege by statutes. The various state statutes define the extent and the limitations of the privilege. Privilege belongs to the patient and may be waived by the patient or a representative of the patient.

PLAIN VIEW OR OPEN VIEW DOCTRINE

The principle that if a law officer is where he or she has a right to be and sees evidence or contraband in plain view, then the evidence may be seized and used in a criminal trial.

THE DAUBERT TEST

The principle that scientific evidence presented to the court must result from testes and theories that are testable, have been reviewed by peers, have huh reliability rates, and are generally accepted by the associated scientific community.

SEXUAL ASSAULT COUNSELOR'S PRIVILEGE

The privilege for counsels of victims of sexual assault and crimes of violence; also applies to records and testimony by counselors without the consent of the victim or patient.

PRIVILEGE AGAINST SELF-INCRIMINATION

The privilege of self-incrimination applies to communicative or testimonial evidence. It does not apply to other physical evidence, or communications in the possession of another person. Only the person whose testimony is sought to be "compelled" may assert the privilege.

WHAT IS A GUILT PLEA?

The regular guilty plea is made in open court upon showing that the defendant did in fact commit the criminal act or acts with which he or she charged and upon a showing that the defendant voluntary and intelligently is entering the guilty plea and waiving the right to a trial.

THE CHAIN OF CUSTODY

The set of procedures of the integrity of evidence by tracking its handling and storage from the time it was obtained to the time it is offered at trial.

WHAT IS THE DIFFERENCE BETWEEN THE SPOUSAL TESTIMONIAL PRIVILEGE AND THE MARITAL COMMUNICATION PRIVILEGE?

The spousal testimonial privilege permits one spouse to prevent another from giving any testimony. The marital communication prevents only testimony concerning privileged communications.

THE SPOUSAL TESTIMONIAL PRIVILEGE

The spousal testimonial privilege permits one spouse to prohibit the other spouse from testifying in any manner against the spouse. It is lost when the marriage ends. The spousal communication privilege applies to all confidential communications between spouses. It does not cover tape recordings of conversations made by a spouse, and those recordings may be admitted as evidence. The privilege may be evoked by either spouse, and does not end with the dissolution of the marriage.

EXPLAIN THE FUNCTION OF THE WRIT OF HABEAS CORPUS.

The writ of habeas corpus is issued by a court and directed to a government official, such as a warden of a prison, to appear before the court and show cause why the person seeking the petition is being held. In federal courts, the writ can be used to review criminal convictions from state courts, but only to determine if the convictions violated the U.S. Constitution or federal laws.

WHAT IS THE CURRENT METHOD OF DETERMINING GUILT OR INNOCENCE IN THE U.S. TODAY?

Today, persons charged with criminal offenses are presumed innocent until proven guilty. Defendants may admit or deny a criminal charge, and if the charge is denied, place the burden of proof on the government to come forward with sufficient, credible, and admissible evidence proving guilt beyond a reasonable doubt.

THE AMERICAN ACCUSATORIAL SYSTEM

U.S. uses the accusatorial system in criminal investigations and criminal trials.

LIST THE RIGHTS IDENTIFIED AND MADE AVAILABLE TO A CRIMINAL DEFENDANT UNDER THE U.S. CONSTITUTION.

While some individual rights in criminal prosecutions are identified in the U.S. Constitution, such as the two witness testimony requirement for conviction of Treason in Article III, Section 3, most individual rights are found in the first 10 Amendments. These rights have been incorporated into the 14th Amendment as well.

CAN EVIDENCE BE EXCLUDED FROM A TRIAL?

Yes. Evidence an be excluded when it is: 1). Unfairly prejudicial 2). Confusing 3). A waste. For Example: Violent/gruesome photographs.