C: Criminal Evidence and Procedure

Star Chamber

A special court that was established by the English king in the fifteenth century and that was charged with prosecuting and punishing political and religious dissidents.

Statement Under Belief of Impending Death

A statement made by an unavailable declarant while believing that the declarant's death was imminent concerning the cause or circumstances of what the declarant believed to be impending death.

Admissions

A statement may be admissible under the Federal Rules of Evidence, under various state rules, or as an admissions exception to the hearsay rule if used against a party and the statement falls within one of the following situations: 1. Admissions of a Party: statement by a party to a legal action. 2. Adoptive Admission: party to the legal action adopts the statement as true. 3. Authorized Admission: statement made by person authorized to make a statement regarding the subject matter of a legal action. 4. Admission by Agent: statement made by agent of a party to the lawsuit within the scope of agency or employment during the existence of the relationship. 5. Admission by Co-Conspirator: statement made by co-conspirator of a party during the conspiracy and in furtherance of the conspiracy.

Excited Utterance

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Near-Miss Issue

A statement that narrowly misses under an existing hearsay exception.

Hearsay

A statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

Closing Arguments

A summary of the evidence by the prosecution and defense.

Affidavit

A sworn statement setting forth facts constituting probable cause that an individual has committed a criminal offense.

Attenuated

A term used to describe a weak link between an unreasonable search and the resulting seizure of evidence; the Exclusionary Rule does not apply where evidence is attenuated.

Blood Alcohol Testing

A test to determine blood alcohol content.

Pertinent Trait

A trait relevant to the charges against the defendant. Honesty and trustworthiness, for example, are pertinent to a charge of embezzlement or fraud.

Bench Trial

A trial in which a judge sits without trial.

Administrative Convenience

A troubling aspect of plea bargaining. A DA may persuade a defendant to bargain because the lawyer wants to avoid taking the time to prepare the case for a criminal trial. DA may also persuade clients to plead guilty in an effort to maintain a good working relationship with the prosecutor's office in hopes of being offered attractive bargains in future cases.

Disparity

A troubling aspect of plea bargaining. Defendants who plead guilty typically receive less severe sentences that defendants who are convicted at trial, meaning that individuals are perceived to be punished for exercising the constitutional right to a public trial. There may also be a disparity between the sentences handed out to individuals who enter into plea bargains, meaning the penalty imposed on these individuals may not fit their crimes.

Innocent Defendants

A troubling aspect of plea bargaining. There is a risk that innocent individuals will plead guilty to avoid the uncertainty of trial.

Showup

A victim or eyewitness is confronted with a single suspect.

In-Court Identification

A witness identifies the perpetrator of a criminal act in court.

Federal Rule 702: Testimony by Expert Witnesses

A witness is qualified as an 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 in 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

Federal Rule 602: Need for Personal Knowledge

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.

Expert Testimony

A witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion.

Expert Witness

A witness qualified by knowledge, skill, experience, training, or education to provide expert opinion about evidence that is beyond the understanding of the average juror.

CH 4: DIRECT AND CIRCUMSTANTIAL EVIDENCE Credibility

A witness whose testimony is worthy of belief.

CH 6: THE OPINION RULE AND EXPERT TESTIMONY Lay Witness

A witness with knowledge that may be possessed by the average juror that does not depend on particular skill, training, or experience.

Identifications

A witness's identification of a "person made after perceiving the person" is admissible as an exception to the hearsay rule.

Brief

A written legal document that is submitted to a court.

True Bill

A written statement by a grand jury that there is sufficient evidence to indict the defendant.

Two Requirements for Relying on Secondhand Information

According to Justice Goldberg, these two requirements are needed in order for probable cause to be based on the hearsay report of an informant so long as these are met: 1. Veracity Prong: the police officer is required to demonstrate that they have good reasons to believe the informant's information is accurate. 2. Basis-of-Knowledge Prong: the police officer must indicate how the informant obtained knowledge of the criminal activity.

Four Considerations To Explain Why it is Good Social Policy for Prosecutors to Offer a Benefit to Defendants Who Plead Guilty

According to the American Bar Association, these four considerations explain why prosecutors offering plea bargains is good social policy: 1. Responsibility: the guilty plea indicates that a defendant is taking responsibility for their actions and is expressing regret for the crime. 2. Flexibility: the guilty plea creates the opportunity for the judge to engage in creative sentencing alternatives such as drug treatment or probation. 3. Victims: the defendant's guilty plea avoids subjecting victims to the painful experience of a trial. 4. Cooperation: the defendant may agree to cooperate with the police or the prosecutor in other investigations and prosecutions.

Chain of Custody

Accounts for possession of real evidence from time seized by police until introduced into evidence.

Adoptive Admission

Occurs when a person reacts to a statement made by another person that may reasonably be interpreted as an affirmation that the statement is true.

Change of Venue

One of many motions that may be filed prior to trial. A defense attorney may file a motion for a change of venue if the DA believes that there is a "reasonable likelihood" that the defendant cannot receive a fair trial.

Motion for Severance

One of many motions that may be filed prior to trial. Co defendants are typically tried together but a defendant may make a motion for a separate trial on the grounds that severance is "necessary to achieve" a fair determination in defendant's guilt or innocence. The court considers whether that jury in its deliberations will be able to separately consider the guilt of each of the defendants or whether each defendant will be prejudiced by standing trial with their co-defendants.

Double Jeopardy

One of many motions that may be filed prior to trial. Prosecuting a defendant in the same jurisdiction on two occasions for the same crime. It is not violated by prosecuting an individual for separate crimes committed during a single transaction. An individual who commits a criminal act that violates two criminal statutes may be charged with a violation of each law.

Speedy Trial

One of many motions that may be filed prior to trial. Sixth Amendment right to a trial without unreasonable delay. The Fourth Amendment Due Process Clause also incorporates this right, which is also guaranteed by law in all 50 states. Courts in making this determination consider the length and reason for the delay and whether the defendant has been prejudiced by the delay in the prosecution of the defendant.

Motion for a Dismissal of Charges

One of many motions that may be filed prior to trial. The defense may file a motion to dismiss the charges on the grounds that there is insufficient evidence as a matter of law to support the charges. This is unlikely to be successful because probable cause has been found to exist to proceed to trial.

Selective Incorporation Plus

The Fourteenth Amendment Due Process Clause incorporates selected portions of the Bill of Rights along with other rights.

Fundamental Fairness

The Fourteenth Amendment Due Process Clause prohibits states from criminal procedures that are fundamentally unfair. States are otherwise free to structure their criminal justice systems.

Uniform Rules of Evidence (URE)

The National Conference of Commissioners on Uniform State Laws in an effort to standardize state laws of evidence drafted new Uniform Rules of Evidence.

Totality of the Circumstances Test

The Supreme Court adopted this test with regard to the admission of identifications under the due process test. There are four steps. 1. The defendant must establish by a preponderance of the evidence (51 percent) that the procedure was suggestive. Suggestive: the defendant must establish that the identification was impermissibly suggestive by a preponderance of the evidence. 2. The prosecution must demonstrate that the procedure nonetheless is reliable, meaning the result can be trusted. Reliable: the prosecution must demonstrate that the identification is reliable, meaning the identification can be trusted. 3. Reliability is determined by a totality of the circumstances considering various factors relating to the witness's observations of the perpetrator (central question in terms of whether an identification violates due process of law). The judge examines the following factors to determine the reliability of identification: a. perception: opportunity to view the offender at the time of the crime. b. concentration: ability to focus on the offender's appearance. c. accuracy: accuracy of the description of the suspect following the crime. d. certainty: certainty in the identification of the defendant. e. time: length of time that elapsed between the crime and the identification. f. other evidence: additional evidence that the defendant was involved in the crime. 4. These factors are to be weighed against the fact that the witness may be influenced by the suggestiveness of the identification. The court must determine whether, based on the totality of the circumstances, the suggestive procedures create a "very substantial likelihood of irreparable misidentification."

The Supreme Court Approaches to Due Process Clause of Fourteenth Amendment

The Supreme Court employed three approaches to the argument made by lawyers that the Due Process Clause of the Fourteenth Amendment applied to the states and included various previsions of the Bill of Rights to the U.S. Constitution. These approaches include: 1. Fundamental Fairness: the Supreme Court decides on a case-by-case basis whether rights are fundamental to the concept of ordered liberty and therefore apply to the states. 2. Total Incorporation and Total Incorporation Plus: the entire Bill of Rights applies to the states. Total incorporation plus includes additional rights not in the Bill of Rights along with the entire Bill of Rights. 3. Selective Incorporation: Particular rights in the Bill of Rights apply to the states. Selective incorporation plus includes additional rights not in the Bill of Rights along with the particular rights in the Bill of Rights.

Relying on Technology for Searches and Seizures

The Supreme Court has adopted two general rules in regard to police reliance on technology: 1. Plain View: technology may be used without a search warrant to enhance observation of an area or object already in plain view (open fields, curtilage). 2. Home: the physical structure of the home possesses a high expectation of privacy. Technology may not be used without a warrant founded on probable cause to engage in the surveillance of the interior of the home in order to detect activity that otherwise would not be revealed without physically entering the home.

Supervisory Authority

The Supreme Court has the authority to direct lower federal courts to follow rules that are not based on the U.S. Constitution.

Difference Between Curtilage and Open Fields

The Supreme Court lists the following factors to be considered when telling the difference between curtilage and open fields: 1. Distance: whether the area is distant or close to the area of the home 2. Enclosure: whether the area is within an enclosure surrounding the home 3. Function: whether the area is used for activities that normally are part of the home activities. 4. Protection: whether an effort is made to protect the area from observation.

Judicial Review

The U.S. Supreme Court reviews the decisions of the legislative and executive branches of government to determine whether they are consistent with the U.S. Constitution. The Court is the "final arbiter" of the meaning of the Constitution.

Purging the Taint

The effect of an attenuated connection between an illegal search and evidence seized in such a search; if the connection is attenuated, it is said to purge the taint of the illegal search.

Fact of Consequence

The element(s) required to prove the criminal charge and the elements of any affirmative defenses relied on by the defendant. They are determined by the criminal charges and affirmative defenses available to a defendant in each case.

Total Incorporation

The entire Bill of Rights is incorporated into the 14th Amendment Due Process Clause.

Total Incorporation Plus

The entire Bill of Rights, along with other rights not contained in the Bill of Rights, is incorporated into the Fourteenth Amendment Due Process Clause.

En Blanc

The entire court.

Automobile Exception

The exception to requirement that police obtain a warrant before conducting a search; a warrant is not required for an automobile.

Summary of Exclusionary Rule

The exclusionary rule excludes the following from trial: 1. Direct Evidence: evidence that is directly derived from the unreasonable search. 2. Fruit of the Poisonous Tree: evidence that is derived from the evidence that is directly seized.

Case-by-Case Determination

The facts of each situation are evaluated to determine whether a police officer's conduct meets the applicable legal standard.

Original Jurisdiction

The first court to hear a case.

Redirect Examination

The lawyer who examined a witness on direct examination may ask the witness additional questions following the witness's cross-examination.

Conclusive Presumptions

The jury is required to reach a conclusion from fact established at trial. "Children under the age of 6 cannot form mens rea" is an example of this.

Rebuttable Presumptions (Permissive Presumption)

The jury may reach a conclusion from a fact established at trial. "A defendant is presumed innocent" is an example of this.

Relevance

The key to the courtroom door, a central principle of the law of evidence is that only relevant evidence is admissible in a trial. Relevant evidence is considered evidence which is material and probative.

2 Goals of Chain of Custody

The main goal of the chain of custody is to demonstrate the item: 1. is the same item seized by the police 2. is in substantially the same condition as it was when it was seized by the police

Former Testimony

Transcripts of a witness's testimony at an earlier deposition or proceeding in the same case or in another case admissible when declarant is absent.

Motion to Limine

"At the outset

Federal Rule 412: Sex Offense Cases: The Victim's Sexual Behavior or Predisposition (b) Exceptions (1) Criminal Cases (A)(B)(C)

(1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim's sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence (B) evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the the prosecutor (C) evidence whose exclusion would violate the defendant's constitutional rights

Federal Rule 606: Juror (b) During an Inquiry into the Validity of a Verdict or Indictment

(1) Prohibited Testimony or Other Evidence: during an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.

Federal Rule 606: Juror (b) During an Inquiry into the Validity of a Verdict or Indictment

(2) Exceptions: A juror may testify about whether: A. extraneous prejudicial information was improperly brought to the court's attention B. an outside influence was improperly brought to bear on any juror C. a mistake was made in entering the verdict on the verdict form.

Federal Rule 804: Exceptions to the Rule Against Hearsay-When the Declarant is Unavailable as a Witness

(a) Criteria for Being Unavailable: a declarant is considered to be unavailable as a witness... (3) Statement Against Interest: a statement that: (A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's propriety or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability and.. (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Federal Rule 704: Opinion on an Ultimate Issue

(a) In General-Not Automatically Objectionable: an opinion is not objectionable just because it embraces an ultimate issue. (b) Exception: in a criminal case, an expert witness must not state an opinion whether or not the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Federal Rule 901: Authenticating or Identifying Evidence

(a) In General: to satisfy the requirement or authenticating or identifying an item of evidence, the proponent must produce evidence sufficient enough to support a finding that the item is what the proponent claims it is.

Federal Rule 807: Residual Exception

(a) In General: under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804: (1) the statement has equivalent guarantee of trustworthiness (2) it is offered as evidence of a material fact (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts (4) admitting it will best serve the purposes of these rules and their interests of justice (b) Notice: the statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant's name and address, so that the party has a fair opportunity to meet it.

Federal Rule 804: Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability

(b) The Exception: the following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (6)Statement Offered Against a Party That Wrongfully Caused the Declarant's Unavailability: a statement offered against a party that wrongfully caused-or acquiesced in wrongfully causing-the declarant's unavailability as a witness. and did so intending that result.

Federal Rule 804: Exceptions to the Rule Against Hearsay-When the Declarant is Unavailable as a Witness

(b) The Exceptions: the following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Former Testimony, testimony that: (A) was given as a witness at a trial hearing, or lawful deposition, whether given during the current proceeding or a different one (B) is now offered against a party who had-or, in a civil case, whose predecessor in interest had-an opportunity and similar motive to develop it by direct, cross, or redirect examination. (2) Statement Under the Belief of Impending Death: in a prosecution for homicide or a civil case, a statement that the declarant, while believing the declarant's death to be imminent, made about its cause or circumstance.

Challenges With Confessions Within Criminal Justice Process

1. Abuse: the police may be tempted to employ physical abuse and psychological coercion to extract confessions. 2. Fair Procedures: a reliance on pretrial confessions to establish a suspect's guilt is contrary to the principle that guilt is to be established beyond a reasonable doubt through the adversarial process in a courtroom. 3. Reliability: there is the danger that a conviction will be based on a false confession. 4. Inequality: uneducated and disadvantaged suspects and individuals lacking self-confidence may be particularly vulnerable to manipulation and trickery.

Signs for Whether the Suspect is Reasonably Believed to Post a Threat

1. A bulge in the suspect's pocket 2. A suspect reaching into their pocket 3. The suspect's movements 4. The officer's knowledge that the suspect has been involved in violent activity 5. The type of criminal activity 6. The suspect's presence in a high-crime neighborhood, particularly late at night 7. An individual's being with another individual who is arrested by the police for a serious offense

Exceptions to the Exclusionary Rule

1. Collateral Proceedings 2. Attenuation 3. Good Faith Exception 4. Independent Source 5.Inevitable Discovery Rule 6. Impeachment

Three Interchangeable Terms With Distinct Meanings in Regard to Interrogations

1. Admission: an individual admits a fact that tends to establish guilt, such as their presence at the shooting scene. An admission combined with other facts may lead to a criminal conviction. 2. Confession: an individual acknowledges the commission of a crime in response to police questioning or may voluntarily approach the police and admit to the crime. 3. Statement: in an oral or written declaration to the police, an individual may assert their innocence.

Reasonable Suspicion Determination

1. Articulable Suspicion 2. Objective Standard: the facts are to be judged in accordance with a reasonable person standards and not based on what the officer (subjectively) believed. 3.Experience and Expertise: the facts are to be interpreted in light of an officer's experience and training. 4. Informants: reasonable suspicion may be based on information from a reliable informant or on information from an anonymous informant who provides information that is corroborated by law enforcement officers. 5. Totality of the Circumstances: the entire factual situation is to be taken into account in determining whether there is reasonable suspicion. 6. Probabilities: reasonable suspicion is based on probabilities rather than certainties. 7. Particularized Suspicion: the "detaining officer must have a particularized and objective basis for suspecting the particular person stopped of criminal activity". 8. Probable Cause and Reasonable Suspicion: the Supreme Court has clarified that probable cause means "a fair probability that contraband or evidence of a crime will be found."

Privileges Recognized by Federal and State Courts

1. Attorney-Client 2. Clergy-Penitent 3. Physician-Patient 4. Psychotherapist-Patient 5. Husband-Wife 6. Government (a). Executive (b). State Secrets (c). Official Information (d). Confidential Informant's (e). Grand Jury Confidentiality 7. News Media

Examples Where Petitioners Lacked Standing

1. Automobile Passengers 2. Overnight Guests 3. Possessory Interest in Items That Are Seized 4.Commercial Transactions 5. The Target of a Police Investigation

Five Principal Forms of Impeachment

1. Bias or Interest: Is it true you were offered a reduced sentence if you testified for the government against the defendant? 2. Sensory or Mental Defects: You identified the defendant as the perpetrator of the crime although you were not wearing your glasses? 3. Character for Untruthfulness: Were you previously convicted of perjury? 4. Specific Contradiction: You told the police you killed the victim, and now you deny killing the victim? 5. Prior Inconsistent Statement: You are testifying you were playing cards at the time of the crime although you previously told police you went by yourself to the movies.

Instances of Reasonable Searches Based on "Lesser Standard" of Reasonable Suspicion/Without any Articulable Suspicion Whatsoever

1. Border Searches: brief and non-intrusive routine searches at the U.S border may be conducted without reasonable suspicion or probable cause. 2. Automobile Checkpoints: automobiles may be briefly stopped at fixed checkpoints in the interests of highway safety. 3. Airport Screening of Passengers: airline passengers and their belongings and baggage may be searched without reasonable suspicion. 4. Workplace Drug Testing: employees who are on the job during a railroad incident or whose jobs involve dangers that pose a threat to the public may be required to submit to suspicionless drug testing. 6. School Drug Testing and Searches: drug tests of certain students may be carried out in the schools without reasonable suspicion. 7. Probationers and Parolees: individuals under the supervision of state authorities have a diminished expectation of privacy and generally may be searched based on reasonable suspicion. 8. Prisoners: prisoners lack an expectation of privacy in their cells, and their cells may be searched without reasonable suspicion.

Attorney-Client Privilege Requirements

1. Client: a client is an individual who communicates with a lawyer to obtain legal advice or representation. 2. Attorney: an attorney is an individual licensed to practice law. 3. Communication: communication between the client and the attorney and from the attorney to the client is covered by the privilege. 4. Confidentiality: communications that are intended to be confidential are protected. 5. Scope: communication between the client and the attorney regarding legal services to the client is protected. 6. Payment: the attorney-client privilege is not dependent on payment of a fee.

If Demonstrated, These Two Factors Exclude a Confession

1. Coercion: the police or government officials subject the defendant to physical or psychological coercion. 2. Will to Resist: the coercion overcomes the will of an individual to resist.

Factors Considered by Courts in Evaluating Voluntariness

1. Coercive Police Procedures: whether there is police psychological pressure or a police-dominated atmosphere that may coerce an individual into consenting to a search against their will. 2. Requests for Consent: whether there are a number of requests for consent before the individual agrees to the consent. 3. Custody: whether the individual is in custody or physically restrained or handcuffed when they are requested to consent to a search. 4. Awareness of the Right to Refuse: whether an individual is informed of their rights to refuse consent. 5. Experience in the Criminal Justice System: an individual who has experience in the criminal justice system is less likely to be tricked or coerced into a waiver. 6. Consent to Search Form: many police departments provide individuals with a form to sign that indicates that they consent to the search. 7. Miranda Warning: individuals in custody who are read the Miranda warnings are informed that they are not required to submit to police interrogation, and in many cases when asked to consent to a search they are also informed that any objects seized during a consent search may be used against them. 8. Seizure of Contraband: defendants in several cases have argued that their consent could not have been voluntary because the police found incriminating evidence in the course of the consent search.

Individuals Rely on These Types of Authority for Third-Party Consent

1. Common Authority Third-Party Consent: this requires "mutual use of the property by persons having joint access or control for most purposes." 2. Apparent Authority Third-Party Consent: in this instance, police officers reasonably (but mistakenly) believe that a person has common authority.

Scope of Attorney-Client Privilege

1. Confessions to a past crime. 2. Consultation on whether a proposed business plan (tax deduction, investment scheme) is lawful. 3. Asking a neighbor who is a licensed attorney for legal advice. 4. Admission that individual has fraudulently concealed money.

Requirements of Privileges

1. Confidentiality: the verbal or written statements must be made or communicated in confidence. 2. Relationship: the relationship must fall within one of the relationships required for a conversation to be privileged. 3. Outside Parties: the statements must not be communicated or overheard by other nonessential individuals. 4. Scope: privileges protect the content of the communication between individuals. 5. Exceptions: statements made in a confidential relationship only may be revealed if they fall within a recognized exception. 6. Waiver: the holder of the privilege may waive the privilege. 7. Deceased: privileges generally outlast the death of one of the holders of the privileges. 8. Burden of Proof: the burden of proof is on the party claiming the privilege.

Arguments Against the Exclusionary Rule

1. Constitution: the Supreme Court has held that the Exclusionary Rule is a "judicially created remedy" that is intended to deter the police from engaging in unreasonable searches rather than a constitutionally required remedy that is "part and parcel" of the 4th Amendment. 2. Deterrence: former Chief Justice Warren Burger dismissed the notion that the Exclusionary Rule deters the police from violating 4th Amendment rights as a "wistful dream". The police are concerned with gathering evidence and with making arrests and do not stop to analyze whether a search satisfies the ever-changing and complicated standards for searches and seizures established by the Supreme Court. The immediate impact of an unreasonable search and seizure is felt by the prosecutor who loses evidence rather than by the police officer. 3. Judicial Integrity: the Exclusionary Rule decreases respect for the judiciary by requiring courts to take the side of defendants rather than victims. 4. Truth Seeking: the Exclusionary Rule undermines the purpose of a criminal trial, which is the determination of an individual's guilt or innocence based on available and reliable evidence. 5. Penalizing Victims: the protection of criminal defendants undermines rather than promotes respect for the criminal justice system. 6. Lack of Flexibility: the Exclusionary Rule excludes evidence regardless of whether the police committed a technical violation of the law or engaged in blatant and intentional violation of the 4th Amendment. 7. Limited Application: the Exclusionary Rule has no impact on the police in those instances in which the police seize a gun or drugs in order to remove the contraband from the streets and have no intention of pursuing criminal prosecution.

Justifications for the Exclusionary Rule

1. Constitutional Rights: the 4th Amendment protects individuals against unreasonable searches and seizures, and this safeguard would be seriously weakened if evidence seized in an unreasonable search is used against an accused at trial. 2. Deterrence: the Exclusionary Rule deters the police from disregarding constitutional procedures in future investigations. 3. Judicial Integrity: judges are charged with interpreting and protecting the Constitution of the United States, and confidence in the rule of law is promoted by the fair and equal enforcement of the law. 4. Social Cost: the cost of excluding evidence has led police departments to stress the importance of police professionalism and to introduce training programs to ensure that law enforcement personnel follow 4th Amendment procedures.

Confessions Significance Within Criminal Justice Process

1. Crime Detection: confessions help the police solve crimes where there is an absence of scientific evidence and witnesses. 2. Accountability: acknowledging guilt is a significant step toward rehabilitation. 3. Efficiency: confessions facilitate both criminal convictions of the guilty and exoneration of the innocent.

Psychological Explanations for Misidentifications

1. Crime Factors: your ability to perceive what occurred may be limited when the crime is committed relatively quickly. 2. Victim Factors: you may be too nervous to focus on the perpetrator or may find that you primarily concentrate on the weapon or on the offender's hat, clothes, shoes, voice, or physical build and overlook other factors. 3. Offender Factors: studies indicate that people are unable to accurately identify the features of individuals of a different race.

Public Policy Reasons for Confidential Informant Privilege

1. Crime Investigation and Detection: information provided by citizens can assist police in investigating and detecting crime. 2. Citizens' Obligation: citizens should feel an obligation to report crime to law enforcement officials. 3. Anonymity: the withholding of an informant's identity encourages individuals to cooperate with the police and protects individuals against retribution. There is a strong public policy reason for revealing a confidential informant's identity when they directly participated in the crime and when they testify against the defendant at trial. 1. Due Process: the identity of the informant is crucial to the ability of the defendant to offer an effective defense and to confront their accusers.

Instances for Single-Person Showups

1. Crime Scene: the police may apprehend a suspect immediately following a crime and present the suspect to the victim or to the eyewitness for identification. 2. Courthouse: a victim or eyewitness may observe a suspect during an arraignment before a judge or inadvertently encounter the suspect in a courthouse. 3. Emergency: the police may factor an emergency in which they are unable to rely on a lineup or photographic identification.

Facts Constituting Reasonable Suspicion

1. Criminal Activity: acts that may indicate criminal activity such as casing a store or an exchange of money on the street. 2. Time: acts that take place at a time of day in which criminal activity is likely to occur. 3. Location: a high-crime area or an area that is characterized by a particular type of criminal conduct. 4. Criminal Record: police officer awareness of the individual's arrest record of record of criminal involvement. 5. Evasion: fleeing from or evading the police. 6. Noncooperation: noncooperation when approached or questioned. 7. Nervous: acting nervous during the encounter with police. 8. Experience: police officer's experience in making arrests for the type of activity.

Exceptions to Doctor-Patient Privilege

1. Criminal Plans: the physician-patient privilege does not cover information on how to conceal or carry out a crime. This may entail information on the lethal impact of various drugs, surgeries performed to conceal an individual's identity, and providing a drug addict with a prescription for drugs. Several states limit the privilege to civil cases and do not recognize the privilege in criminal cases. 2. Duty: state laws variously require the reporting to government authorities of sexually transmitted diseases, suspected child abuse, gunshot and knife wounds, severe burn injuries, injuries reasonably believed to be the product of domestic violence, and other suspicious activities. Some states establish a duty to report any and all criminal activity a patient discloses to a physician. 3. Incidental Information: the doctor-patient privilege does not include incidental information such as the name, address, occupation, age, and date of treatment.

Reasons for Hearsay Rule

1. Cross-examination: the inability to cross-examine the declarant prevents an examination of whether the declarant might be lying, have misperceived the event, or have a faulty memory or whether the listener misunderstood the declarant's words or took the declarant's words out of context. 2. Safeguards: the safeguards available at trial minimize the "hazards" associated with in-court statements are not available for out-of-court statements. 3. Constitutional Protections: hearsay evidence violates the Confrontation Clause of the Sixth Amendment to the U.S. Constitution, which gives a defendant in a criminal trial the right to confront and cross-examine their accusers.

Right Against Self-Incrimination

1. Cruel Trilemma: individuals should not be compelled to choose between "self-accusation, perjury, or contempt". The law, in other words, should not place an individual in the position of making the unhappy choice of admitting guilt, denying guilt and facing a perjury charge for false testimony, or refusing to speak and being held in contempt of court for failing to cooperate with the judicial process. 2. Coercion: there is a fear that coercion and force will be used to compel individuals to incriminate themselves. 3. Adversarial System: we have an adversarial system rather than inquisitorial legal system. The accused is not required to establish their innocence; the state has the burden of proving guilt beyond a reasonable doubt. 4. Privacy: an individual should not be forced to disclose information to the government.

Areas of Criminal Trials in Which Experts Are Used

1. DNA Evidence 2. Fingerprint Identification 3. Handwriting Analysis 4. Ballistics Evidence 5. Footprint Analysis 6. Neutron Activation Analysis (Gunpowder Residue Testing) 7. Testimony Relating to Common Practices of Drug Trafficking 8. Gang Organization and Functioning

Justice Black's Criticisms of Fundamental Fairness Approach

1. Decision Making: fundamental fairness does not provide definite standards to determine the rights that are protected by the Fourteenth Amendment Due Process Clause. 2. Bill of Rights: the Bill of Rights includes the rights that the founders struggled to achieve and believed were essential to liberty and freedom. The Fourteenth Amendment is intended to make these rights available to individuals in their relations with state governments. 3. Textual Language: the drafters of the Fourteenth Amendment would have used the phrase "rights essential to liberty and justice" if this were their intent.

DNA Applications in Criminal Justice Process

1. Detection: DNA may be used to connect an individual to a criminal act. 2. Investigation: DNA includes or excludes an individual as a suspect. 3. Guilt or Innocence: DNA may establish guilt or innocence at trail. Individuals who have been convicted may discover DNA evidence that establishes their innocence. DNA is not always a "magic-bullet" that will reliably indicate whether an individual is guilty or innocent. 4, Contamination: a defendant's DNA sample may be mixed up with another individual's DNA. DNA also may deteriorate as a result of a failure to safeguard the sample. 5. Laboratory Practices: the laboratory may make a mistake in analysis or in calculating statistical probabilities. 6. Significance: there may be numerous explanations for the presence of a suspect's DNA at the crime scene, and this may lead to the prosecution and possible conviction of an innocent individual. In other instances, a jury may become so confused about DNA evidence that they either fail to take into account or exaggerate its significance. 6. Relevancy: DNA is not always relevant to the issue in a case.

Requirements for a Reasonable Arrest

1. Determination of Probable Cause: an arrest warrant must be issued by a judge or magistrate. 2. Warrants: an arrest warrant is not required to arrest individuals in most instances. 3. Physical Force: the police may employ reasonable force to seize a suspect. 4. Arrests and Citations: individuals are subject to arrest for both felonies and misdemeanors.

Observations in Making a Probable Cause Determination

1. Direct Observations: an officer may directly observe an individual engage in criminal conduct or conduct characteristic of an individual who is about to commit a crime or who has committed a crime. 2. Statements: the police may hear a suspect make an incriminating statement or confess to a crime. 3. Seize Evidence: the police may collect and analyze scientific evidence that indicates that a suspect was involved in a crime. 4. Smell: a police officer may smell narcotics or alcohol.

Factors When Considering the Suggestiveness of Photographic Identifications

1. Display: whether the display of the photographs singled out a particular individual. 2. Police: whether the words, gestures, or actions of the police pointed to a particular photograph. 3. Photo: whether a particular photograph was sufficiently different in size, color, and the suspect's appearance to influence the selection of the eyewitness. 4. Instructions: whether the police indicated that the photograph of the offender may not be included in the photographs.

Steps of Total Incorporation Plus

1. Due Process: due process is shorthand for the Bill of Rights. 2. Bill of Rights: identify the rights protected by the Bill of Rights. 3. Incorporation: these rights are incorporated into the Fourteenth Amendment and must be followed by the states to the same extent that the rights are followed by the federal government.

Right to a Lawyer Following Initiation of Criminal Proceedings

1. Efficiency: during the investigative stage, the police should not be required to slow their investigation and to delay lineups until the defendant hires a lawyer. 2. Prosecution: the initiation of criminal proceedings by the filing of a formal charge indicates that the government has decided to prosecute the accused, and it is at this point that the accused is in need of legal protection, advice, and assistance.

Interests Advanced by Stipulation

1. Efficiency: stipulations save judges time and resources. 2. Focus: stipulations allow the parties to focus on the main issues presented by the criminal charges. 3. Credibility: a lawyer must believe that it is in their client's best interests to enter into a stipulation. Jurors may grow frustrated by a lawyer who extends the length of the trial by challenging every fact at trial.

Factors Presumptions are Based on

1. Efficiency: the use of presumptions expedites trials by making it easier to establish a fact or element of a crime. This relieves judges of the need to untangle complicated factual situations. 2. Probability: presumptions are based on a close and demonstrated connection between the basic fact and the presumed fact. 3. Social Policy: various presumptions are based on the promotion of a desirable social policy. 4. Fairness: one of the parties has greater access to evidence, and the presumption assists the party who lacks access to the information by placing the burden of producing evidence on the more informed party. 5. Jury Decision-Making: presumptions help guide jury decision-making.

Why We Need Rules of Evidence

1. Equality: it ensure that both the prosecution and defense follow the same rules and that neither the defense nor the prosecution has an advantage over the other by, for example, introducing hearsay evidence. 2. Values: they promote societal values. The rules, for example, establish testimonial privileges that safeguard the relationship between spouses, clergy and penitent, and doctor and patient. 3. Fairness: they ensure that one side does not have an unfair advantage over the other side at trial. One side of a case generally can present evidence so long as the other side has the opportunity to cross-examine the witness and to test the witness's truthfulness. 4. Efficiency: they exclude evidence that is cumulative (repeats) and that does not add additional information to the case and therefore constitutes an unnecessary expenditure of time and resources. 5. Quality: they help ensure that the "best evidence" is presented at trial by, for example, encouraging the use of original documents rather than copies of documents or testimony about the contents of documents. 6. Emotion: they limit the evidence presented to jurors to ensure that evidence is not introduced that will result in decisions being made on the basis of emotion rather than based on an analysis of the facts. 7. Improper Conduct: they limit the ability of lawyers to influence the outcome of trials through the verbal abuse of witnesses, or misrepresentation of the facts presented at trial in opening and closing arguments.

Common Practices of Suggestive Lineups

1. Everyone in the lineup other than the suspect is known to the victim. 2. The suspect is the only person in the lineup whose physical appearance and dress match the description of the perpetrator. 3. The individuals in the lineup are asked to try on an item of clothing that fits only the suspect. 4. The police point out the suspected perpetrator to the victim prior to the lineup. 5. The victim is asked to identify whether an individual in a jail cell is the suspected perpetrator.

Using Habeas Corpus to Remedy These Constitutional Violations

1. Evidence at Trial: a defendant was denied due process of law by being convicted based on insufficient evidence. 2. Confessions: a defendant's conviction was based on statements obtained in violation of Miranda v. Arizona. 3. Ineffective Assistance of Counsel: claims were made of racial discrimination in the selection of a grand jury. 4. Jury Instructions: faulty jury instructions relieved the prosecution of proving elements of a crime or improperly placed the burden of proof on the defendant. 5. Prosecutorial Misconduct.: it was alleged that prosecutors withheld exculpatory evidence or made prejudicial comments during the trial. 6. Actual Innocence: a defendant claims that newly discovered evidence supports their claim of "actual innocence".

Four Basic Types of Fingerprints

1. Exemplar Prints: prints intentionally collected following an arrest for a suspected criminal offense. 2. Latent Prints: chance or accidental impressions not visible to the naked eye left on a surface. 3. Patent Prints: impressions visible to the human eye left as a result of the transfer of material such as flour, wet clay, or blood from a finger onto a surface. 4. Plastic: an impression left in a material such as wet clay that reflects the same of the friction ridge.

Requirements of Residual Exception

1. Existing Rule: the statement must not be specifically covered by a hearsay exception in Rule 803 or 804. 2. Trustworthiness: the statement must have "circumstantial guarantees of trustworthiness" that are "equivalent" to those in existing exceptions. 3. Material Fact: the statement must be relevant to a material fact in the case. 4. Probative: the hearsay must be "more probative of the information than other evidence that the proponent can obtain through reasonable efforts." The hearsay evidence will not be admitted into evidence in those instances in which the declarant is available or if the proponent can reasonably obtain equally probative evidence. 5. Interest of Justice: the admission of the evidence will serve the purposes of the rules and the interests of justice. This is a broad standard that requires the court to evaluate the need for evidence at trial. 6. Notice: the proponent must inform the opposing party of their intent to use the statement, the details of the statement, and the declarant's name and address.

Categories of Witnesses

1. Fact Witnesses: individuals who testify about the facts related to the crime are called fact witnesses. These witnesses may be eyewitnesses to the crime, etc. 2. Expert Witnesses: expert witnesses are used to help the jury understand the significance of facts presented at trial. Expert witnesses possess specialized knowledge and expertise that is not commonly possessed by the average person, such as a psychiatrist evaluating a defendant's insanity plea. 3. Character witness: character witnesses testify about the character of a party or witness and do not testify about the facts of the case, such as a next door neighbor.

Purposes of Inventory

1. False Claims: deter false claims of theft by the police. 2. Property: protect property against theft by the police. 3. Safety: prevents arrestees from injuring themselves or others using belts, knives, firearms, or other instrumentalities that are smuggled into the jail lockup. 4. Identification: confirm or ascertain an individual's identity.

Constitutional Provisions to Ensure Fair Confessions

1. Fourteenth Amendment Due Process Clause 2. Fifth Amendment Self-Incrimination Clause 3. Sixth Amendment Right to Counsel

Four Points to Consider in Regard to the Fundamental Rights Approach to the Fourteenth Amendment Due Process Clause

1. Fundamental Rights: the Due Process Clause prohibits state criminal procedures and police practices that violate fundamental rights. 2. Bill of Rights: the Due Process Clause protects rights because they are fundamental, not because they are in the Bill of Rights. 3. Legal Test: the Supreme Court has employed various tests to determine whether a right is fundamental. The Court held that rights are fundamental only if they are of the "very essence of the scheme of ordered liberty," if "a fair and enlightened system of justice would be impossible without them," or if they are based on "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental". 4. Procedures: states are free to establish criminal procedures that do not violate fundamental rights protected under the Due Process of the Fourteenth Amendment. The Supreme Court noted that in those instances in which it holds that a state law does not violate due process, the law may be changed through the democratic process.

Selective Incorporation Approach Elements

1. Fundamental Rights: the Fourteenth Amendment incorporates those provisions of the Bill of Rights that are "fundamental principles of liberty and justice which lie at the base of all our American civil and political institutions." The entire amendment rather than a single portion of the amendment is incorporated into the Fourteenth Amendment ("jot for jot and case for case"). 2. Application: the amendment that is incorporated is applicable to the same extent to both state and federal governments. 3. Federalism: states are free to design their own systems of criminal procedures in those areas that are not incorporated into the Fourteenth Amendment.

Identifications in the Criminal Investigative Process

1. Identification: identifications may narrow the range of individuals under investigation. 2. Exoneration: identifications may eliminate suspects from the investigation. 3. Criminal Charge: identifications may lead to charging an individual with a crime. 4. Confidence in Indictment and Conviction: identifications supplement the other evidence at trial and increase confidence that the defendant was properly indicted, prosecuted, and convicted.

Impeachment of a Defendant by Evidence of a Criminal Conviction

1. Impeachment Value of the Former Crime: crimes of violence such as robbery, arson, and murder possess low probative value for demonstrating dishonesty. Convictions for crimes such as perjury, false pretenses, and embezzlement have a high probative value for demonstrating dishonesty and are admitted under Rule 609 (a)(2). 2. Timing of the Prior Conviction and Subsequent Criminality: the more remote the crime, the less the probative value in demonstrating a lack of truthfulness. 3. Similarity Between the Prior Crime and the Charged Crime: the offense used for impeachment should be sufficiently different from the offense with which the defendant is charged so as not to risk prejudicing the jury's consideration of the charges against the defendant. 4. Importance of the Defendant's Testimony: the more important the defendant's testimony, the greater the interest in allowing the defendant to testify without the risk of impeachment of the defendant's testimony. 5. Centrality of Credibility: the more central the defendant's credibility is to a case, the greater the interest in admitting evidence to impeach their testimony. The government, when using a criminal conviction to impeach a defendant's testimony, bears the burden of demonstrating that the probative value of the felony conviction outweighs its prejudicial effect.

Situations in Which Spousal Competence is Excluded

1. In proceedings for desertion and maintenance. 2. In any criminal proceeding against either for bodily injury or violence attempted, done or threatened upon the other, or upon minor children of said husband and wife, or the minor children of either of them, or any minor child in their care or custody, or in the care or custody of either of them. 3. Applicable to proof of the fact of marriage, in support of a criminal charge of bigamy alleged to have been committed by or with the other. 4. In any criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviant sexual intercourse or rape.

Reasons for Grand Jury Confidentiality

1. Independence: the confidentiality of proceedings protects the independence and free deliberations of the grand jury. 2. Witnesses: the secrecy protects individuals required to testify before the grand jury and encourages witnesses to testify openly without fear of retribution. 3. Accused: confidentiality helps ensure that individuals who may not be indicted do not flee the jurisdiction to avoid impending criminal charges. The privacy of individuals who are not indicted is protected.

CH 12: SEARCHES AND SEIZURES AND PRIVACY Types of Evidence Involved in Searches and Seizures

1. Instrumentalities of Crime: items used to carry out a crime, such as firearms. 2. Fruits of a Crime: money stolen from a bank, jewelry taken from a home, a wallet taken during a robbery, or computers stolen from a store. 3. Contraband: unlawful drugs and other prohibited substances. 4. Evidence of Criminal Activity: clothes with gunpowder residue, bloody clothes, or DNA traces that link a suspect to a crime. 5. Incriminating Statements: statements overheard during electronic surveillance.

CH 11: THE EXCLUSIONARY RULE Evidence Excluded From Trial Based on Violation of Constitutional Amendments

1. Interrogations and Identifications and the 5th, 6th, and 14th Amendments: coerced confessions and confessions obtained in violation of Miranda v. Arizona, as well as confessions extracted in violation of the 6th Amendment, are excluded from the prosecutor's case in chief. 2. 6th Amendment: a failure to provide an attorney at a lineup following the initiation of criminal proceedings results in the exclusion at trial of evidence from the lineup.

Instances Where the Sixth Amendment Right to Counsel Applies

1. Judicial Proceedings: the Sixth Amendment applies to both federal and state government agents at or after the time that judicial proceedings have been initiated against an accused-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. 2. Deliberately Elicited: the government may not intentionally elicit information. 3. Waiver: the police may initiate contact with an individual whose Sixth Amendment right to counsel has attached following a preliminary hearing, and the individual is free to talk to the police.

Why Supreme Court Adopted Bright-Line Review

1. Judicial Review: the courts do not have the time and resources to review the reasonableness of every search incident to an arrest conducted by the police that may be challenged by a defendant. 2. Safety: searches incident to an arrest protect the safety of officers. 3. Evidence: searches incident to an arrest may result in the seizure of evidence of other crimes. 4. Privacy: a search is a modest intrusion on an individual who, once having been subjected to an arrest, already has lost a degree of personal privacy.

Criticisms of Limiting the Trial

1. Lack of Logic: rules may appear to be unfair or make little sense to the public. You may think that a jury should be informed about the entire background of a defendant at trial rather than waiting for a defendant's criminal record to be considered at sentencing. 2. Legal Representation: the party with access to money and resources has an advantage in complicated trials requiring expert representation, experts, and scientific investigation. 3. Guilty Plea: a number of commentators note that trials are so complicated, expensive, and unpredictable that the average defendant is encouraged to plead guilty.

Three Characteristics of Arrest

1. Lawful Authority: the officer is acting in their official capacity as a law enforcement official. 2. Detention: an officer may restrain an individual through a formal statement ("you are under arrest") or through actions that constitute a de facto arrest. 3. Reasonable Person: a reasonable person, based on the objective circumstances, would believe that they are under arrest.

Reasons for Recognizing Attorney-Client Privilege

1. Legal Representation: there is a social interest in encouraging defendants to be represented by a lawyer at trial in order to mount an effective defense and to avoid conviction of the innocent. 2. Effective Representation: a lawyer cannot effectively represent a client unless they know all the relevant information, and a client will not share this information unless guaranteed that the information will remain confidential. 3. Special Relationship: the lawyer and client possess a relationship of trust, and requiring the lawyer to testify against their client is a violation of the lawyer's special obligation of loyalty to the client.

Forms of Eyewitness Identification

1. Lineups: victims or eyewitnesses view a group of individuals, typically six in number. 2. Showups: the police may stage a confrontation between the victim or eyewitness and a single suspect. 3. Photographic Identifications: the victim or eyewitness is asked to determine whether the perpetrator is pictured in any of the photographs.

Importance of Confessions

1. Many criminal cases can be solved only through confessions or through information obtained from other individuals. 2. Suspects often will not admit their guilt unless subjected to lengthy interrogations by the police. 3. Successful police questioning requires sophisticated interrogation techniques that many be considered trickery or manipulative in ordinary police interactions with the public.

Rules 401 Tests for Relevance

1. Materiality: the evidence must relate to a "fact of consequence to the determination of the action." 2. Probative Value: evidence must make a "fact of consequence more probable or less probable than it would be without the evidence." The evidence must be logically related to establishing a fact of consequence.

CH 9: HEARSAY Cross Examination Relies on These Four Types of Examinations

1. Memory: the attorney explores the witness's ability to recall what transpired. 2. Perception: the lawyer tests the accuracy of the witness's observations. 3. Narration: the attorney examines whether the witness is able to clearly and coherently relate what they observed. 4. Sincerity: the lawyer explores whether the witness has a motive to fabricate or to misrepresent the facts.

Why Parties Enter into Factual Stipulations

1. Minor Factual Points: minor details such as whether it was dark outside or the defendant's weight or height can be agreed upon by the parties and avoid wasting time. 2. Facts Easily Established: one side knows the other attorney can easily establish fact. 3. Prejudice: a defense attorney may want to avoid facts that may prejudice the jury against the defendant.

Claims Raised on the Appeal of a Felony Conviction

1. Motion to Suppress: the trial court improperly permitted the prosecution at trial to introduced a coerced or involuntary confession or evidence seized as a result of an unlawful search. 2. Self-Incrimination: there was a violation of the defendant's right against self-incrimination. 3. Exonerating Evidence: the prosecutor failed to disclose exculpatory evidence to the defense. 4. Double Jeopardy: the defendant was previously tried for the same crime. 5. Speedy Trial: the defendant was not provided with a speedy trial. 6. Jury: the petit jury selection process was discriminatory. 7. Judge: the judge's instruction to the jury were wrong. 8. Defense Attorney: the defendant was represented by an ineffective counsel. 9. Prosecutor: the judge improperly permitted the prosecutor to introduce prejudicial evidence at trial or to engage in an inflammatory closing argument to the jury. 10. Verdict: the facts at trial were insufficient to establish the defendant's criminal conviction.

Scope and Duration of Terry Stops

1. Movement: a Terry stop does not permit the involuntary and significant movement of a suspect unless required by reasons of safety and security. 2. Length of Detention: a Terry stop must be for a limited duration. 3. Intrusiveness: the police are to employ the "least intrusive" methods reasonably available to them to investigate suspected criminal activity under the circumstances and to interfere as little as possible with an individual's freedom.

State and Federal Approaches to Discovery

1. Names and addresses of witnesses: 1/2 of states provide for discovery of the names and addresses of those known to have relevant information. A number of other jurisdictions and the federal government do not make this information available because of a fear of intimidation of witnesses. A third group requires disclosure only of individuals "intended" to be called to trial. 2. Witness statements: A majority of states either do not permit discovery of the statements of interviewed witnesses or leave this to the discretion of the judge. Roughly 14 states and the federal government do not require pretrial disclosure of the witness statements. The federal policy is based on protecting witnesses from harassment. 3. Police officers: police personnel records generally are not discoverable. Some states require disclosure in the event that the records are likely to contain information relevant to the officer's credibility.

4 Types of Pleas

1. Not Guilty: "I did not commit the crime." 2. Not Guilty by Reason of Insanity: "I did not know the nature and quality of my act." (very rarely used and very difficult to prove) 3. Nolo Contendere: "I do not want to contest the criminal charge." AKA "No Contest" 4. Guilty: "I committed the crime."

Expectation of Privacy and 4th Amendment Protection Regarding Homes

1. Open Fields: this includes land distant from the home, which the police may enter without probable cause or a warrant. 2. Home: the physical structure of the dwelling-house is accorded full and complete protection under the 4th Amendment, and to enter it, the police in most instances require a search warrant founded on probable cause. 3. Curtilage: the area immediately surrounding the home is considered part of the dwelling-house. Curtilage has no expectation of privacy from aerial surveillance. 4. Public Property: this land is generally open to the public, and a warrant is not required for the police to seize property. 5. Commercial Property: the police may enter and seize items without a warrant from stores and businesses that are open to the public. A warrant is required to enter those areas reserved for employees. 6. Abandoned Property: property that is intentionally abandoned has no expectation of privacy and may be seized by the police without a warrant.

Steps of a Trial

1. Opening Statements 2. Prosecution's case-in-chief 3. Defense's case-in-chief 4. Prosecution's rebuttal 5. Defense's surrebuttal 6. Closing arguments 7. Jury instruction 8. Jury deliberation 9. Jury unanimity 10. Verdict

Situations in Which Jurors Are Allowed to Testify About Events Inside the Jury Room

1. Outside prejudicial information was improperly brought to the juror's attention. 2. Outside influences were brought to bear on a juror/jurors. 3. A mistake was made in entering the verdict on the verdict form.

Things To Consider With Present Sense Impressions

1. Participant: the declarant may be an observer and is not required to be involved in the event. 2. Subject Matter: the declarant must describe or explain an event or condition. 3. Contemporaneous: the statement is required to be made at the precise moment the declarant is observing the event. 4. Declarant: the present sense exception applies to both identified and unidentified declarants. 5. Knowledge: the declarant must directly experience the events and may not rely on the account of another individual. 6. Corroboration: there is no requirement that the declarant's description is corroborated by another individual.

Sources Expert Witnesses Base Their Opinions On

1. Perception: the expert's analysis is based on their perception. 2. Information: the expert may base their analysis on information provided by another individual. 3. Trial: the expert may base their opinion on testimony of other witnesses at the trial. 4. Experts in the Field: an expert may rely on facts or data that are not admissible in evidence if they are the "type reasonably relied upon by experts in the particular field."

Three Stages of Eyewitness Identification

1. Perception: you view the crime. 2. Memory: you remember what happened. 3. Identification: you recall what happened and identify the perpetrator.

4th Amendment Protects These Things

1. Persons: this protects individuals against unreasonable detentions and unreasonable searches of their persons. 2. Houses: homes encompasses all residences, dwellings attached to the residence, and areas immediately surrounding the home as well as areas of commercial businesses that are not open to the public. 3. Papers: letters, diaries, and business records are protected. 4. Effects: effects include personal possessions such as automobiles, clothing, and firearms.

How Courts Determine Coercion or Will to Resist was Present

1. Physical Abuse: physical abuse and threats of abuse by the police or angry crowds. 2. Psychological Abuse and Manipulation: threats, rewards, or trickery inducing a suspect to confess. 3. Interrogation: the length, time and place of questioning and the number of police officers involved. 4. Attorney: a refusal to permit a suspect to consult with an attorney, friends, or family. 5. Defendant: the age, education, and mental and emotional development of the defendant. 6. Procedural Regularity: a failure by the police to follow proper legal procedures, including the Miranda warning. 7. Necessity: the police are provided greater flexibility in interrogation when attempting to solve a crime or exonerate a defendant than when they already possess evidence of a defendant's guilt.

Property Rights Theory Protects:

1. Physical Intrusions: for an intrusion to occur, there must be an actual physical entry into the home or physical examination of an individual or their papers or possessions. 2. Scope of Protection: persons, houses, papers, and effects are protected.

When An Individual is Seized Under the 4th Amendment

1. Physical Seizures: a law enforcement officer intentionally takes physical hold of a suspect with the intent to prevent the individual from leaving. 2. Show of Authority Seizures: law enforcement officers demonstrate their authority by directing an individual to halt, displaying their weapons, blocking the suspect's movement, or other conduct that would lead a responsible person not to feel free to leave or otherwise to terminate the encounter. 3. Factory Sweeps: Immigration and Naturalization Service agents carrying walkie-talkies entered a plant, blocked the exists, and asked workers questions regarding their legal status. 4. Bus Sweeps 5. Vehicle Surveillance

Situations Where Knock and Announce is Not Required

1. Physical Violence: there is a threat of physical violence. 2. Prison Escape: a prisoner escapes and flees into the home. 3. Destruction of Evidence: there is reason to believe that evidence will be destroyed.

Requirements of Physician Patient Privilege

1. Physician: the patient must have shared the information with a licensed physician. Most states also recognize the privilege if the patient reasonably believes the individual is licensed to practice medicine. The privilege includes MDs as well as medical professionals like osteopaths, chiropractors, and dentists. The privilege in most states covers individuals working under the doctor's supervision. 2. Patient: the privilege covers an individual consulting a medical professional for diagnosis or treatment. A patient waves the privilege by testifying about the information they shared with a doctor. 3. Scope: the communication to the doctor is required to be made during medical diagnosis or treatment. This information includes the results of laboratory tests, X-rays, laboratory tests performed for purposes of treatment, and advice provided to the patient by the doctor. Some states extend this privilege beyond communication between a patient and a doctor to include information obtained by the doctor in observing a patient's injuries. 4. Holder of Privilege: the privilege belongs to the patient, and the patient may prevent a doctor from testifying. A doctor has the obligation to assert the privilege at trial if the patient is not present. A physician may be compelled to testify if the patient waives the privilege. The privilege will not apply if an outside, nonessential party is present during the conversation with the doctor.

Arrest More Intrusive than Stop and Frisk For These Reasons

1. Place: an investigative stop typically involves a brief detention on the street or in a public location. In contrast, an individual who is arrested is detained at the police station or in jail. 2. Time: an investigative stop may last only as long as required to complete the investigation, while an arrest may result in detention for several hours or several days, or in some cases longer. 3. Documentation: a stop and frisk is not recorded as part of an individual's criminal history. 4. Searches: an investigative stop may be accompanied by a brief interrogation and frisk. A custodial arrest may lead to a full search and to an inventory of an individual's possessions at the police station and to an extended interrogation. 5. Criminal Consequences: a stop and frisk results in a brief investigative stop. A custodial arrest may lead to a criminal indictment, trial, and criminal punishment.

Situations in Which a Juror May Testify as to What Occurred During Jury Deliberations

1. Prejudicial information: prejudicial information was improperly brought to the attention of a juror/jurors. 2. Outside influences: outside influences and pressures were brought to bear on a juror.

Reasons Why Relevant Evidence is Admitted at Trial

1. Preparation: the prosecution and the defense only is required to prepare for the issues involved in the case. A defense attorney only need prepare to rebut the criminal charges against the defendant. 2. Decision-Making: the judge and the jury only are asked to focus on a limited number of issues. 3. Bias: limiting the evidence helps to guard against decisions based on bias or personal prejudice. A jury if informed of a defendant's entire criminal arrest record may be reluctant to acquit the defendant. 4. Legitimacy: the public has confidence that the outcome of cases is decided on evidence relating to the crime in which the defendant is charged rather than on factors that are not strictly relevant to the charge such as the celebrity status or wealth of the defendant. 5. Efficiency: limiting the trial to relevant evidence conserves judicial time and resources and allows for the processing of a large number of cases.

Rebuttable Presumptions and Criminal Law

1. Presumption of Innocence: the rebuttable presumption of innocence requires the prosecution prove the defendant's guilt beyond a reasonable doubt. 2. Presumption of Sanity: individuals who are prosecuted are presumed to be mentally sound and sane. 3. Presumption of Knowledge of the Law: individuals are presumed to know the law. This is also based on the fact that absent this presumption individuals would plead a lack of awareness of the law. 4. Presumption Against Suicide: there is a presumption that "an unexpected death by violence" is the result of an accident rather than a "self imposed" death by suicide. This is also based on the belief that most individuals embrace life and would not intentionally take their own life. 5. Presumption of the Regularity of Official Acts: this presumption is that government officials acted in a lawful fashion in good faith. 6. Resumption of Criminal Intent of Juveniles: most states follow the common law approach to whether juveniles are capable of forming the requisite criminal intent to be held liable for criminal acts.

Reasons Judges May Determine the Unavailability of a Witness

1. Privilege: the declarant is exempted from testifying based on privilege. The assertion of a privilege like the attorney-client privilege furthers the social interest in effective legal representation for the defendant. 2. Refusal: the declarant disregards a court order and refuses to testify. 3. Memory: the declarant testifies to a lack of memory of the subject matter. Note that the witness may have a clear memory of matters other than the specific issue on which they are being interrogated. 4. Death: the declarant is unable to testify because of death or because of an existing physical or mental illness or infirmity. The infirmity must result in the witness being incompetent to testify. 5. Absence: the declarant is absent from the hearing, and the proponent has been unable to procure the declarant's attendance by process or other reasonable means. This typically arises when a party cannot locate the declarant after a good faith search or the declarant refuses to appear and is outside the court's jurisdiction. 6. Wrongdoing: a party cannot cause a witness to be unavailable in order to prevent the witness from testifying and then rely on the hearsay exceptions in Federal Rule 804 to admit the witness's prior statement.

Probable Cause Searches of Containers

1. Probable Cause Limited to Container: the police have probable cause to believe that there is contraband or criminal evidence inside a container that is within an automobile. 2. Probable Cause Extends to the Vehicle: the police have probable cause to believe that there are narcotics somewhere within a motor vehicle.

Concerns with Presumptions and Criminal Law

1. Prosecutor: the prosecution must prove each and every elements of a crime (the intent and the act) beyond a reasonable doubt. 2. Jury: the jury is the ultimate fact finder (unless there is a bench trial before a judge) and must be free to make a judgment on guilt or innocence. A rebuttable presumption does not prevent the jury from evaluating for itself whether the prosecution established every element of the crime beyond a reasonable doubt. 3. Fundamental Fairness: there must be a logical connection between the basic fact and the presumed fact.

Protections a Lawyer Provides

1. Protection at the Identification: a lawyer's observance of a lineup provide an incentive for the police to ensure that the identification process is fair and reliable and not suggestive. 2. Protection at the Trial: the lawyer at trial is able to point out to the jury that the lineup was unfair and argue that the jury should question the accuracy of the identification.

Conditions for Admission of Statements Made For Medical Diagnosis/Treatment

1. Purpose: the statement is made for medical diagnosis or treatment. This is a subjective test and the patient must be seeking medical diagnosis or treatment. 2. Scope: the statement must fit into one of three categories: (a). accounts of medical history, (b) descriptions of past or present symptoms or sensations, (c) the inception of the condition or its general cause.

Factors to Consider When Relying on a Drug Courier Profile

1. Reasonable Suspicion: courts will examine profiles to determine whether the factors constitute reasonable suspicion. 2. Suspect's Conduct: reasonable suspicion must be based on evidence of an individual's specific action or actions, which in combination with other factors indicate that criminal conduct may be afoot. 3. Nonsuspicious Conduct: a pattern of conduct that is innocent or characteristic of a large number of individuals may contribute to a finding of reasonable suspicion based on the totality of the circumstances.

CH 13: STOP AND FRISK The Law of Stop and Frisk

1. Reasonable Suspicion: individuals may be seized (stopped) based on reasonable suspicion. 2. Informants and Hearsay: the police may rely on informants and hearsay to reach a conclusion that there is reasonable suspicion to stop an individual. 3. Race and Reasonable Suspicion: a stop may not be based solely on race, ethnicity, or religion. These characteristics may constitute one factor that, along with other factors, constitutes reasonable suspicion. 4. The Scope and Duration of a Terry Stop: Terry stops are limited in the permissible movement of a suspect and in duration and purpose. 5. Automobiles and Terry Stops: the police may direct the driver and passengers to exit an automobile during an investigative stop. 6. Frisks: the police may conduct a frisk of a suspect's outer clothing for weapons. This has been extended to passenger compartments and to frisk for drugs.

Steps for Public Safety Exception

1. Reasonableness: there must be a reasonable need to protect the police or the public. 2. Threat: there must be a reasonable belief that the threat is immediate. 3. Questions: questions must be prompted by a reasonable concern for public safety and must be directed at public safety rather than guilt or innocence. 4. Coercion: the statements may not be the product of police compulsion that overcomes the suspect's will to resist.

Relying on Informant's Tips to Establish Reasonable Suspicion

1. Reliability: the judge asks whether the informant is known to the officer and considers whether the informant has been accurate in the past. 2. Basis of Knowledge: the judge also asks how the informant has obtained the information. 3. Police Corroboration: a tip that lacks these two indica of reliability may be relied on when corroborated in essential details by the police. 4. Totality of the Circumstances: the judge strikes a balance.

Instances of Good Faith Exception

1. Reliance on a Warrant 2. Reliance on Assurance by a Judge that a Warrant meets 4th Amendment Standards 3. Reliance on Legislation 4. Reliance on Data Entered Into a Computer by a Court Employee 5. Reliance on Apparent Authority of a Third Party to Consent

Provisions of the Wade-Gilbert Rule

1. Right to a Lawyer: a suspect has a constitutional right to a lawyer at all post-indictment lineups and confrontations. 2. Lineup Results at Trial: absent the presence of a lawyer, or a suspect's waiver of a lawyer, at a post-indictment lineup or showup, the results may not be introduced by the prosecutor at trial. 3. In-Court Identification: a prosecutor may not ask a witness for an in-court identification of the defendant unless the prosecutor establishes by clear and convincing evidence that the in-court identification is not the product of an identification at which the suspect was denied a lawyer in violation of the Sixth Amendment.

Explanations for Warrantless Search

1. Safety: to seize weapons that may harm an officer. 2. Resist Arrest: to seize weapons that may be used to resist arrest or to flee. 3. Evidence: to prevent the destruction or concealment of evidence.

Elements of Business Records Exceptions

1. Scope: the business records exception is broadly drafted to admit almost any type of information. This includes an "act, event, condition, or diagnosis." 2. Personal Knowledge: the record must be recorded by an individual with personal knowledge of the data or by a person who received information from an individual or individuals with personal knowledge. 3. Time: the information needs to be recorded within a reasonable period of time. This is designed to ensure that the information is trustworthy. 4. Regular Course of Business: the record must be made in the customary course of business. This is intended to ensure that the record is recorded in regular and standardized procedure and accurate. 5. Witness: these conditions must be demonstrated by the testimony of the person in charge of maintaining the records ("custodian") or by a certification by the custodian that the records meet the requirements of Rules 803(6).

Rule 201. Judicial Notice of Adjudicative Facts

1. Scope: this rule governs judicial notice of an adjudicative fact only, not a legislative fact. 2. Kinds of Facts That May Be Judicially Noticed: the court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. 3. Taking Notice: the court: (1) may take judicial notice on its own; or (2) must take judicial notice if a party requests it and the court is supplied with the necessary information. 4. Timing: the court may take judicial notice at any stage of the proceeding. 5: Opportunity to Be Heard: on timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard. 6. Instructing the Jury: in a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.

Rights of Interrogated Suspects

1. Silence: they have the right to remain silent. The government may not use an individual's decision to remain silent against them. 2. Consequences of Waiver: the warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. 3. Counsel: because the circumstance surrounding in-custody interrogation can operate very quickly to overhear the will of an individual made aware their privilege by interrogators, the warning that the individual has the right to consult with a lawyer prior to interrogation and to have counsel present during questioning is indispensable to the protection of the Fifth Amendment privilege. 4. Appointed Counsel: the individual should be warned not only that they have the right to consult with an attorney, but also if they are indigent, a lawyer will be appointed to represent them.

Areas Where Judges Limit Opinions From Lay Witnesses

1. Smell 2. Identity (recognition of voice, handwriting) 3. Age 4. Conduct (trying to get away) 5. Dimension (length, size) 6. Physical Condition 7. Emotional Condition (insane, happy, sad) 8. Owner's Estimation of Value of Land or Other Objects 9. Suspicious Conduct (witnessing drug transaction) 10. Weight, Distance, Color 11. Time and Duration 12. Speed

Various Policy Considerations for Privileges (Not All of Which Are Relevant to All Privileges)

1. Social Interest: certain relationships are valued by society and merit protection. 2. Effectiveness: various relationships can function most effectively when individuals feel free to communicate and share information without fear that statements and documents will be revealed to outside parties. 3. Privacy: privileges are based on the right to be "left alone" in certain important relationships such as marriage.

Points to Consider Whether Police Consider Race in Initiating a Terry Stop

1. Sole Factor: an individual may not be stopped when the only reason for their seizure is their race, ethnicity, gender, religion, or other descriptive characteristic. 2. Incongruity: an individual may not be stopped based on the fact that they "do not belong in a neighborhood." 3. Identifications: race may be considered as a factor in determining whether there is reasonable suspicion. 4. Profiles: race, ethnicity, or some other description may be considered as one of several factors in a profile.

Three Primary Requirements for Excited Utterance

1. Startling Event: there was a starling event that resulted in the observer's shock and excitement. 2. Time: the statement was made while the observer was under the stress of the event either contemporaneously or immediately following the event. 3. Scope: the statement was related to the event.

CH 14: PROBABLE CAUSE AND ARRESTS Arrest Reasonable if These Standards are Met

1. The arrest must be based on probable cause. Probable cause may be based on direct observations or hearsay. 2. The arrest is carried out in a reasonable fashion.

Factors Judges Consider in Terms of Admitting Courtroom Identification

1. The witness's opportunity to observe the offender during the criminal act. 2. The extent in similarity between the pre-lineup description of the offender and the physical appearance of the individual identified in the lineup. 3. The identification or failure to identify the defendant in a photographic array or at the lineup. 4. Whether there was a brief or lengthy period between the criminal act and the lineup identification.

Other Recognized Scientific Tests

1. Toxicology: toxicology tests are used for the identification of poisonous substances. 2. Breathalyzer: a machine analyzes the breath to determine the alcohol content of the blood. 3. Urine Tests: courts admit the results of urine tests to measure blood alcohol content or drug metabolism. 4. Hair Analysis: radioimmunoassay hair analysis is admissible to determine drug use so long as proper procedures are followed. 5. Horizontal Gaze Nystagmus: police employ this test in the field to determine whether there is probable cause to arrest an individual driving under the influence of alcohol. 6. Vehicle Speed Detection: the speed of an automobile may be measured by radar. 7. Spectographic Voice Identification: spectographic voice identification or voice prints may be introduced to link an individual to a voice recording although a significant number of courts view this technique as unreliable.

Prior Inconsistent Statements Admissible Under Federal Rules

1. Trial: the declarant testifies at the trial or hearing and is subject to cross-examination about the statement. 2. Inconsistent: the statement is inconsistent with the witness's current testimony. 3. Oath: the inconsistent statement was given under oath subject to the penalty of perjury at a trial, hearing, other proceeding or deposition. Various states do not require that the inconsistent statement was made under oath. 4. Testimony: the witness is given opportunity to admit, explain the inconsistency, or deny making the statement.

Primary Tests for Narcotics

1. Ultraviolet Spectrophotometry: this test analysis the reaction of a substance to ultraviolet (UV) and infrared (IR) light. 2. Microcrystalline Test: a drop of the material is added to a chemical on a slide. 3. Gas Chromatography/Mass Spectometry: a small amount of the substance is injected into the gas chromatograph.

Conditions Needed for Former Testimony As Exception to Hearsay Rule

1. Unavailability: the declarant is unavailable. 2. Identity of Motive and of Issues: there is sufficient identity of the issues to have provided a motive at the earlier hearing to examine or to cross-examine the individual on issues substantially the same as issues presented at the trial. 3. Type of Proceeding: the proceeding may be in a court of law, legislative committee hearing, or administrative hearing in which testimony was given under oath and was subject to cross examination. 4. Establishing Prior Testimony: the prior testimony is established by offering a certified transcript of the testimony in the previous trial.

Requirements to Meet Statement Under Belief of Impending Death

1. Unavailable: the declarant must not actually die but must be unavailable. This is intended to ensure that the declaration is reliable. 2. Type of Cases: the dying declaration exception is limited to civil cases and homicide prosecutions. As a result, a dying declaration is inadmissible in most criminal cases. 3. Facts: dying declarations are limited to the cause or circumstances of the declarant's death, statements that are likely to be accurate. Other factual statements are inadmissible. 4. Declarant's Belief: the declarant must personally and actually believe that death is imminent and certain (at most several hours away) and that death is inevitable. 5. Personal Knowledge: the Advisory Committee notes that the declarant must possess firsthand knowledge of the facts. The declarant is subject to impeachment by pointing out that they were in a delirious condition or made a prior inconsistent statement.

Aspects of Inventory

1. Uniformity: an inventory search must be a standardized or uniform procedure. This means that there are fixed guidelines, and all individuals and objects are treated alike. 2. Probable Cause: there is no requirement that the police have probable cause in order to inventory an object or to open and inventory the contents of a container. 3. Reasonable Procedures: the Supreme Court will not second-guess the inventory procedure adopted by a police department as long as the procedure is reasonably designed to protect the police against false allegation of theft, ensure safety, and protect a detainee's property. 4. Criminal Investigation: an inventory search is unlawful and invalid where it is intended to investigate a crime rather than to inventory an individual's possessions.

Explanations for Knock and Announce

1. Violence: knock and announce protects against individuals mistakenly believing that their home is being burglarized and acting in self-defense against the "intruders". 2. Privacy: the occupants of the home are able to prepare for the entry of the police and avoid embarrassment. 3. Destruction of Property: the police are voluntarily admitted into the home and are not forced to knock down the door and destroy property.

Waiver Inquiry Process

1. Voluntary: the right must be voluntarily relinquished, it must be the product of a free and deliberate choice, and it may not be caused by intimidation, coercion, or deception. I am doing this because I want to; the police did not make me waive my rights. 2. Knowing and Intelligent: the waiver must be made with a full awareness both of the nature of the right being abandoned and of the consequences of the decision to abandon the right. a suspect must possess sufficient mental competence to understand the rights and the significance of a waiver. I know what the Miranda rights mean and what may happen to me if I talk. 3. Totality of the Circumstances: the determination whether the waiver is voluntary, knowing, and intelligent is based on the totality of the circumstances surrounding the interrogation. We cannot read your mind, but we can see from the entire situation that the police did not pressure you into waiving your rights, and you seemed to know what you were doing.

Terry Standard for Frisks

1. Weapons: the Supreme Court explained that this carefully limited frisk is intended to protect the officer and others in the vicinity and that it must therefore be "confined to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for assault of the police officer." 2. Reasonableness: the officer need not be absolutely certain that the individual is armed and presently dangerous. the test is whether a reasonably prudent individual under the circumstances would believe their safety or the safety of others is at risk. 3. Scope: the frisk must be directed at the discovery of guns, knives, and other weapons. 4. Dispel: the frisk does not automatically follow from the stop.

Factors Considered By Courts In Evaluating the Impact of a Closing Argument

1. Whether the remarks are particularly inflammatory or likely to incite the jury. 2. Whether the remarks are isolated or extensive. 3. Whether the remarks were provoked by the closing argument of the other side. 4. Whether the defense lawyer made an objection to the remarks thereby indicating a fear of prejudice. 5. Whether the trial court judge issued instructions to the jury in an effort to limit the prejudice. 6. Whether the remarks are combined with other errors at trial. 7. Whether there is overwhelming evidence of guilt.

Authority for Third-Party Consent

1. Wife-Husband: either spouse may consent to a search of the home other than those areas under the exclusive control of the other spouse. 2. Parent-Child: a parent may consent to a search of those areas under the control of the juvenile, such as the juvenile's bedroom. A juvenile may not consent to a search of the home. 3. Motel Clerk: a motel clerk may not consent to the search of a room that has been rented out. 4. Landlord-Tenant: a landlord may not consent to the search of a tenant's apartment. 5. Employer-Employee: an employer may give consent to a search of all areas other than those with a high expectation of privacy, such as a locked desk drawer in an office. 6. Garage Manager-Customer: an individual who parks their car in a garage and leaves the key with the attendant assumes the risk that consent will be given to search the car. 7. Roommates: roommates may consent to searches of areas that they share with one another.

Requirements for Forfeiture by Wrongdoing

1. Wrongfully: the party must have "wrongfully" caused or acquiesced in the witness's unavailability. The Advisory Committee notes that it is sufficient that the "wrongful" act is "improper", and it is not required to be a criminal act. This may included coercing, pressuring, or tricking a witness. 2. Intent: the party must have intended to make the declarant unavailable. 3. Acquiesced: a party is not required to personally commit the wrongful act. Knowledge of a design to kill the witness and a failure to warn authorities has been held to be sufficient. 4. Unavailable: the party must have caused the declarant's unavailability.

Things Juries Consider When Weighing the Credibility of Informant

1. the extent to which the informant's testimony is confirmed by other evidence 2. the specificity of the evidence 3. the extent to which the testimony contains details known only by the perpetrator 4. the extent to which the details of the testimony could be obtained from a source other than the defendant 5. the informant's criminal record 6. any benefits received in exchange for the testimony 7. whether the informant previously has provided reliable or unreliable information 8. the circumstances under which the informant initially provided the information to the police or the prosecutor, including whether the informant was responding to leading questions

Factors to Consider For Someone to be Subject to Custodial Interrogation

1. the number of police officers 2. whether the officer tells the individual that they are free to leave or not free to leave 3. the length and intensity of questioning 4. whether the officer employs physical force to restrain the individual 5. whether the stop is in public or in private 6. the location of the interrogation 7. whether a reasonable person would believe that the stop would be brief or whether the stop would result in a custodial arrest 8. whether the individual is in familiar or unfamiliar surroundings 9. whether the suspect is permitted to leave following the interrogation

Instances of Officers Not Acting in Good Faith

1. the police clearly are aware or should be aware that the warrant lacks probably cause. 2. the warrant is "fatally flawed." 3. the judge issuing the warrant is not "neutral and detached" and acts as a "rubber stamp for the police" or as "an arm of the prosecution."

Present Sense Impression

A "statement describing or explaining an event or condition made while or immediately after the declarant perceived it." The statement must describe or explain rather than analyze the event and must be made immediately or within a brief period following the event.

Sentencing Guidelines

A formula incorporating various factors that is employed to provide uniform, proportionate, and predictable sentences for criminal offenders.

Bright-Line Review

A clear and unambiguous rule established by judicial precedent.

Attorney-Client Privilege

A client can prevent their attorney from testifying about information revealed by the client in confidence.

Collateral Attack

A constitutional challenge by an individual who has been convicted and incarcerated and has exhausted his or her state appeals.

Subpoenas Ad Testificandum

A court order to produce a tangible object.

Subpoenas Duces Tecum

A court order to produce documents.

Persuasive Authority

A decision that does not constitute a binding authority but that a court may consult to assist in making a judgement.

Binding Authority

A decision that establishes a precedent.

Certiorari

A decision to hear an appeal.

Then-Existing Mental, Emotional, or Physical Condition

A declarant's internal (personal) view of their state of mind, emotional, sensory or physical condition. The statement is admissible to establish what the declarant truthfully believes about their condition.

Sixth Amendment Protection Against the Deliberate Eliciting of a Confession

A defendant may not be interrogated by the police following an indictment absent the presence of counsel unless the suspect waives their right to representation.

Federal Rule 404: Character Evidence; Crimes or Other Acts (a) Character Evidence (2) Exceptions For a Defendant or Victim in a Criminal Case (A)

A defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.

Standing

A defendant's eligibility to contest the legality of a search.

Flight

A defendant's leaving the crime scene immediately following the crime or leaving the jurisdiction after being identified as a suspect in a crime.

Express Questioning

A direct question. Questions directed to a suspect by police.

Information

A document signed by a prosecutor charging an individual with a crime.

Venire

A group of individuals from which a jury is selected. They are selected typically based on names drawn from voter registration lists, lists of taxpayers, or lists of licensed drivers over 18 years old. Some basic guidelines for selection of jury venire: 1. random selection: individuals are selected in a random fashion. 2. discrimination: individuals shall not be excluded from service based on race, color, religion, sex, national origin, or economic status. 3. fair cross section: the individuals who are called to serve on the jury should reflect a fair cross section of the community. 4. exemption: various individuals are ineligible to serve on a petit jury such as non-citizens, individuals under 18 years old, those who can't read, write, speak or understand English, individuals with limiting physical or mental conditions, and convicted felons. Various states exempt law enforcement officers, firefighters, and other individuals who serve a vital public function. Individuals may also be temporarily excused as a result of illness or personal obligations.

Sentencing Hearing

A hearing conducted following a defendant's conviction in which the prosecution and defense present their arguments to a judge on the appropriate sentence for the defendant.

News Media Privilege

A journalist is not required to reveal the identity of their sources or to provide information gathered as a journalist.

Judicial Notice

A judge accepts fact as true without following the normal rules of evidence. It also allows a judge to accept a fact as true without further proof.

Objection is Sustained

A judge finds after a lawyer objects to a question being asked of a witness that the question is improper. They will instruct the witness to NOT answer the question. A creative lawyer after an objection is sustained will modify their question to comply with the rules of evidence.

Objection is Overruled

A judge finds after a lawyer objects to a question being asked of a witness that the question is permissible. They will instruct the witness to answer the question.

Plurality Opinion

A judicial opinion that represents the views of the largest number of judges on a court, although short of a majority.

Challenge for Cause

A juror may be excluded from the jury based on an actual or presumed inability to impartially evaluate the evidence.

Federal Rule 606: Juror (a) At the Trial.

A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence.

July Nullification

A jury disregards the law and acquits a defendant.

Grand Jury

A jury that determines whether the prosecutor has sufficient evidence to proceed to trial.

Hung Jury

A jury unable to reach a verdict.

Journalist Shield Law

A law allowing journalists to refuse to reveal their sources.

Opinion Rule

A lay witness may not give an opinion.

Complaint

A legal document that lists the charges, the legal elements of the crime, and the supporting facts against the individual and possible penalties.

Directed Verdict

A motion made by a defense attorney at the conclusion of the prosecution's case-in-chief to dismiss the case based on the prosecution's failure to prove one or more of the elements of the criminal charge.

Trial de Novo

A new trial before a different court.

Physician Patient Privilege

A patient may prevent a doctor from revealing confidential information communicated during an examination for diagnosis or treatment.

Psychotherapist-Patient Privilege

A patient may prevent a psychotherapist from revealing information conveyed during treatment.

Articulable Suspicion

A police officer in justifying an intrusion must present specific and articulable facts that together with rational inferences drawn from those facts reasonably suggest that an individual has committed a crime or is about to commit a crime.

Frisk

A police officer may pat down a suspect's outer clothing.

Reasonable Suspicion

A police officer may undertake an investigative stop of a suspect where they have an objective, factual basis to suspect that "crime is afoot"; the suspect has engaged in criminal activity. This determination is based on the totality of the circumstances, and no single fact may be determinative. Factors to consider include the suspect's actions, nervousness, and evasiveness; frequency and type of criminal activity in the area; time of day; and the officer's prior knowledge of the suspect.

Silver Platter Doctrine

A practice ruled unconstitutional in 1960, in which federal officials relied on evidence in federal prosecutions that had been seized by state officials in violation of the 8th Amendment.

Drug Courier Profile

A profile developed based on experience that isolates characteristics of a drug trafficker.

Invited Response

A prosecutor's closing statement that responds to a statement by the defense attorney.

Rape Trauma Syndrome

A psychological pattern exhibited by rape victims.

Dangerous Patient Exception

A psychotherapist is obligated to reveal reasonable grounds to believe a patient poses a danger to others.

Impeachment

A purpose of cross-examination that may be used to demonstrate that a witness should not be believed by the jury. This may involve: 1. Inconsistent statements: demonstrating that the witness has made statements in the past that contradict their testimony. 2. Dishonesty: calling other witnesses who testify about the witness's reputation for lack of honesty or conviction of a crime of dishonesty.

Leading Question

A question by a lawyer to a witness that suggests the desired answer.

Argumentative Question

A question that challenges a witness in a rude or hostile manner.

Jury Poll

A questioning of individual jurors regarding whether they support the jury verdict.

Seizure

A reasonable person would not believe themselves to be free to leave or to otherwise terminate the encounter.

Business Records

A record kept in the course of a regularly conducted activity of a business or organization is admissible in evidence.

Clemency

A reduction in a criminal punishment.

Pardon

A release from additional criminal punishment.

Presentment

A report filed by a grand jury with the court on criminal activity.

Presentence Report

A report prepared for a judge following a defendant's conviction presenting the factors that may be considered in sentencing the defendant and the sentencing options available to a judge.

Inevitable Discovery Rule

A rule providing that evidence seized as the result of an unconstitutional search is admissible where the government can prove that it would inevitably have been discovered in a lawful fashion.

Exclusionary Rule

A rule that evidence that is obtained as a result of the violation of the Fourth Amendment prohibition or unreasonable searches and seizures is inadmissible in a criminal prosecution to establish a defendant's guilt.

Contemporaneous

A search incident to an arrest must take place immediately before, at the same time as, or immediately after the arrest.

Prior Consistent Statements

Admissible to rehabilitate a witness but may not be introduced for truth of the matter asserted. Prior consistent statements thus are introduced to show that the statement was true rather than the statement was made. Prior consistent statements are introduced on redirect examination after the witness has been impeached by a prior inconsistent statement or by allegations that testimony recently was fabricated or is based on a motive such as friendship or a bribe.

Judge Ruling on Identification Being Admissible or Inadmissible

Admissible: the witness may testify at trial that they identified the defendant prior to the trial if the judge determines, based on the totality of the circumstances, that there is not likelihood of irreparable misidentification.

Stipulation

Agreement between the parties that a fact or facts exist. An agreement typically between the prosecution and the defense to accept a fact as true.

Constitutionalization of the Bill of Rights

Also known as nationalization, an extension of the rights and freedoms in the Bill of Rights to the fifty states.

Indictment

An accusation of criminal activity returned by a grand jury.

Physical Seizure

An act in which a law enforcement officer takes hold of a suspect with the intent to prevent the individual from leaving.

Booking

An administrative procedure in which the suspect's name, arrest time, offense charged, fingerprinting, and photographs are recorded.

Inventory

An administrative procedure recording the possessions of an arrestee and the content of impounded automobiles.

Aguilar-Spinelli Test

An affidavit must detail the informant's credibility and basis of knowledge.

Express Waiver

An affirmative relinquishment of a right.

Plea Bargaining

An agreement to plead guilty (or nolo contendere) in return for a reduction in charges or other considerations, usually between the prosecution and the defense. The defendant agrees to this and waives their right to trial in return for a "benefit" from the prosecution. Plea bargaining has been eliminated in Alaska and in some counties in Arizona, Iowa, Louisiana, Michigan, Oregon, and Texas.

Fourteenth Amendment

An amendment to the U.S. Constitution passed in 1868 in order to provide equal rights and opportunity to newly freed African American slaves.

Interlocutory Appeal

An appeal taken prior to the final verdict.

Trespassory Approach

An approach to Fourth Amendment protection that assumes such protection is limited to physical intrusions of the home, comparable to property rights approach.

Property Rights Approach

An approach to Fourth Amendment protection that assumes such protection is limited to physical intrusions of the home, comparable to trespassory approach.

Pretext Arrest

An arrest that is motivated by the intent to investigate law violations for which no probable cause or even articulable suspicion exists.

Harmless Error

An error made in admission of evidence that does not contribute to the conviction obtained. An appellate court must be convinced beyond a reasonable doubt that the error is harmless.

Plain Error Exception

An exception that permits an appellate court to review an error that was not raised in the trial court.

Plain View

An exception to the 4th Amendment warrant requirement that allows a police officer to seize an item without a search warrant when (1) the officer is lawfully positioned and (2) there is probable cause to seize the object.

Plain-Feel Doctrine

An exception to the Fourth Amendment warrant requirement that allows a police officer to seize an item without a search warrant when (1) the officer is lawfully positioned and (2) there is probable cause to seize the objects.

Federal Rule 703: Bases of Opinion Testimony of Experts

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

Admission

An individual admits a fact that tends to establish guilt, such as their presence at the crime scene. An admission, when combined with other facts, may lead to a criminal conviction.

Admission by Party-Opponent

An individual admits a fact that tends to establish guilt, such as their presence at the crime scene. An admission, when combined with other facts, may lead to a criminal conviction.

CH 16: INTERROGATIONS AND CONFESSIONS Confession

An individual admits the commission of a crime in response to police questions.

Respondent

An individual against whom a collateral attack is directed.

Misdemeanant

An individual arrested for a misdemeanor.

Consecutive Sentences

An individual convicted of multiple crimes may be given consecutive sentences, meaning that the sentences for each criminal act are served one after another.

Petitioner

An individual filing a collateral attack on a verdict following the exhaustion of direct appeals.

CH 5: WITNESSES Competency to Testify

An individual is competent to testify as a witness who understands the duty to testify truthfully, possesses personal knowledge, and is able to recollect and to describe events.

Spousal Competence

An individual may testify against his or her spouse.

Break in Custody Rule

An individual who invokes right to counsel may be interrogated after fourteen days.

Informant

An individual who provides information about criminal activity to law enforcement.

Informant Privilege

An informant may not be required to testify.

False Confessions

An innocent individual confesses to a crime that they did not commit.

Factors to Consider When Examining the Voluntariness of a Confession

An involuntary confession requires an "essential link between coercive activity of the State, on the one hand, and a resulting confession by a defendant on the other." 1. Offender: the age, education, background, and other characteristics of the accused. 2. Conditions of Interrogation: the length of the interrogation or the length of the suspect's detention prior to the reading of the Miranda rights. 3. Interrogation Techniques: whether there was the threat or use of coercion, duress, or violence. 4. Motivation: whether the suspect had a reason to confess such as desire for a reduced sentence that was not related to the actions of the police.

Probative Value

An item of evidence that tends to prove or disprove a fact at issue in the case.

Formal Arrest

An officer may directly tell you that "you are under arrest."

Narrative Question

An open-ended question to a witness that allows the witness to testify without interruption about the events that are the subject of the prosecution.

Dissenting Opinion

An opinion by a judge disagreeing with the majority of judges.

Concurring Opinion

An opinion by a judge supporting a majority or dissenting opinion, typically based on other grounds.

Per Curiam

An opinion of an entire court without any single judge being identified as the author.

Statement

An oral or written declaration to the police that may constitute an assertion of innocence.

Blood Typing

Analysis of blood type.

Ballistics

Analysis of firearms and ammunition.

Federal Rule 607: Who May Impeach a Witness

Any party, including the party that called the witness, may attack the witness's credibility.

Demeanor

Appearance of the victim.

Supremacy Clause

Article VI, Section 2 of the U.S. Constitution provides that the Constitution, the laws of the United States, and treaties shall be the "supreme law of the land." This gives the federal government priority over the state government when there is a conflict between federal and state laws.

Types of Plea Bargains

Charges: the prosecutor dismissed some of the charges against the defendant or charges the defendant with a less serious offense or offenses. This results in a less severe prison sentence and the defendant avoids a conviction for a more serious offense. Sentence Recommendation: the prosecutor agrees not to oppose the defendant's request for a specific sentence with the understanding that the judge is free to impose whatever sentence they view as appropriate.

CH 15: SEARCHES AND SEIZURES OF PROPERTY Search Warrant

Authorization from a magistrate to search and seize specified objects.

Federal Rule 603: Oath or Affirmation to Testify Truthfully

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness's conscience.

Vital Statistics

Birth, death, and marriage records are admissible.

Surrebuttal

Called a rejoinder is some jurisdictions, witnesses presented by the defense attorney to attack the evidence presented by the prosecutor on rebuttal.

Fleeing-Felon Rule

Common law doctrine that police may use deadly force to apprehend a suspected felon who is fleeing the police.

Fourteenth Amendment Due Process Voluntariness Test

Confessions may not be obtained through psychological or physical coercion that overcomes the will of an individual to resist.

Involuntary Confession

Confessions that result from coercion, drugs, or a mental disability rather than free will.

Third-Party Consent

Consent to a search provided by an individual with common authority who exercises mutual use of property and has joint access or control for most purposes.

Intermediate Appellate Courts

Courts between municipal courts and the state supreme court.

Courts of General Jurisdiction

Courts that hear more serious criminal and civil cases.

Courts of Original Jurisdiction

Courts with jurisdiction over a broad range of cases.

Courts of Limited Jurisdiction

Courts with jurisdiction over a narrow range of cases.

Comparison Between Declaration Against Interest and Admission by a Party Opponent

Declaration Against Interest: 1. Statement by party or nonparty 2. Declarant must be unavailable 3. Declaration against interest when made 4. Statement of responsibility or guilt Admission by a Party Opponent: 1. Statement required by to be made by party 2. Declarant may be available or unavailable 3. Statement need not be against interest when made 4. Statement need not be a confession of guilt

Show of Authority

Demonstration of authority by law enforcement officers in which they direct a suspect to halt and/or display their weapons, block the suspect's movement, or otherwise conduct themselves in a manner that would result in a reasonable person not feeling free to leave or otherwise terminate the encounter. The suspect must actually submit to the demonstration of authority.

DNA

Deoxyribonucleic acid is a molecule that stores an individual's genetic code. Every individual other than a genetic twin has a distinct genetic code.

Preliminary Hearing

Determination whether a defendant should be bound over for trial.

Constitutionalization

Development of a single standard that applies to the federal government as well as to states.

Writs of Assistance

Documents used by eighteenth-century American colonial authorities to compel individuals to assist in carrying out a search.

Indictment States

Eighteen indictment states, the District of Columbia, and the federal government provide that following the preliminary hearing a felony charge is to be brought before a grand jury. A prosecutor may "bypass" the preliminary hearing by immediately taking a charge before a grand jury.

Exigent Circumstances

Emergency circumstances justifying warrantless entry into the home.

CH 7: CRIME SCENE EVIDENCE AND EXPERIMENTS Laying the Foundation

Establish preliminary facts before evidence may be admitted. Item of evidence must be what it claims to be.

Federal Rule 601: Competency to Testify in General

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision.

Oath (Affirmation)

Every witness is required to swear an oath to affirm they will "testify truthfully."

Direct Evidence

Evidence based on personal knowledge or observation of a witness and conclusively establishes fact or facts. This evidence directly proving a fact in question. Ex: Eyewitness viewed killing.

Fruit of the Poisonous Tree

Evidence derived from unlawfully seized evidence.

Federal Rule 401: Test for Relevant Evidence

Evidence is relevant if: 1. it has any tendency to make a fact more or less probable than it would be without the evidence 2. the fact is of consequence in determining the action.

Federal Rule 404: Character Evidence; Crimes or Other Acts (a) Character Evidence (1) Prohibited Use

Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.

Fingerprint Evidence

Evidence of ridge characteristics of fingers used to connect an individual to a crime.

Corroborative Evidence

Evidence that adds new information that confirms prior testimony.

Derivative Evidence

Evidence that is discovered as a result of unlawful seizure.

Cumulative Evidence

Evidence that repeats evidence already admitted at trial.

Prejudicial Evidence

Evidence whose probative value substantially outweighed by danger will impact objective evaluation of evidence by the jury.

Ordeals

Evidentiary proof based on an appeal to God or on various physical tests.

Voir Dire

Examination of potential jurors.

Expectations of Privacy and Police Fourth Amendment Searches

Expectations of Privacy/Search: 1. electronic surveillance of a phone conversation 2. opening luggage 3. entering a home 4. opening and reading a private diary No Expectation of Privacy/No Search: 1. eavesdropping on a conversation 2. entry onto farmland 3. aerial surveillance of a backyard 4. examination of trash in a dumpster

Legislative Facts

Facts relating to the larger social context of a case.

CH 3: TYPES OF EVIDENCE Relevant Evidence

Federal Rule of Evidence 402 provides that "all relevant evidence is admissible...Evidence which is not relevant is not admissible."

Other Acts Evidence

Federal Rule of Evidence 404(b) provides that the prior acts of a defendant may be admissible by the prosecution to establish "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Other acts evidence, however, "is not admissible to prove the character of a person in order to show action in conformity therewith."

First Appearance (Initial Appearance)

Following an arrest, a suspect's initial appearance before a judge for the determination of probable cause, to be informed of his or her rights, for decisions to be made on pretrial release and bail, and for the appointment of an attorney (for indigents).

Scientific Evidence

Forensic evidence and evidence involving application of scientific analysis.

Writ

Form of action, this must meet highly technical and involved language. "Where there is no writ, there is not right".

Rule of Four

Four Supreme Court judges are required to vote to hear a case.

Modified Indictment States

Four states require indictments for felonies punishable by capital punishment and life imprisonment.

Administrative Inspections

Government agencies conduct searches to determine whether businesses, factories, apartments, and homes are conforming to a broad range of regulations.

Search

Government intrusion on an individual's expectation of privacy.

Grand Jury Confidentiality

Grand jury proceedings are required to remain secret.

CH 17: EYEWITNESS IDENTIFICATIONS Eyewitness Identification

Identification of a suspect by a victim or witness.

Corporeal Identification

Identification of an individual who is physically present.

Suggestive Procedures

Identifications that influence the result by highlighting one of the participants.

Federal Rule 701: Opinion Testimony by Lay Witness

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception (b) helpful to clearly understanding the witness's testimony or to determining a fact at issue (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Weight

Importance attached to evidence by a fact finder.

Hostile Witness

In fact-a witness who is resistant or uncooperative. In law-a witness who identifies with the adverse party such as the widow of an individual allegedly to have been killed by the defendant.

Informants and Electronic Eavesdropping

In summary, we assume the risk that the person with whom we are communicating may be working as a government agent or informant. There is no constitutionally protected expectation of privacy in conversations that we engage in with other individuals. It makes no difference whether the other individual is an informant or government agent who: 1. immediately reports the contents of the conversation to the police and writes down their conversation 2. records the conversation using electronic equipment 3. transmits the conversation to police officers who are monitoring the conversation.

Presumed Fact

In the case of a rebuttable presumption, the opposing party may also attack whether the presumed fact follows from the basic fact.

Character Evidence

Includes evidence of a wide variety of human traits including trustworthiness, honesty, law-abidingness, non-violence, and attention to detail. Also referred to as propensity evidence.

Circumstantial Evidence

Indirectly proves a fact and requires the fact finder to use an inference or assumption. Ex: Eyewitness saw defendant running from the scene of a murder.

Fillers, Foils, or Distractors

Individuals in a lineup who are not suspects.

CH 10: PRIVILEGES Testimonial Privilege

Individuals in various confidential relationships may not testify about information communicated during the relationship.

Anonymous Tip

Information from an unidentified informant.

Official Information Privilege

Information regarding criminal investigation, military plans and diplomacy, and other matters.

Jury Instructions (Jury Charge)

Instructions issued to the jury by the judge.

Limiting Instruction

Judicial instruction restricting the purposes that evidence may be considered by the jury.

Absence of Rebuttal

Jurors may find against a rebuttable presumption although the defendant offers no evidence challenging either the basic fact or the presumed fact.

Incommunicado Interrogation

Law enforcement questioning of individuals in the isolation of a police station.

Polygraph

Lie detector test.

Inference

Logical deduction of one fact from another fact.

Marital Privileges

Marital Communications Privilege: 1. Confidential communications between spouses 2. Only confidential communications 3. Spouses are not required to be married 4. Either spouse may assert 5. Civil and criminal cases 6. Does not apply to events before marriage 7. Survives end of marriage 8. Various exceptions including spouse and children Marital Testimony Privilege: 1. All testimony against a spouse 2. Applies to actions and observations 3. Spouses must be married 4. Which spouse may assert differs 5. Only in criminal activities 6. Applies to events before marriage 7. Does not survive end of marriage 8. Various exceptions including spouse and children

Knock and Talk Searches

Most courts approve of these searches on the grounds that the police by knocking on an individual's door are doing no more than any citizen might do and are not violating a resident's expectation of privacy.

CH 2: THE CRIMINAL JUSTICE PROCESS Pretrial Motions

Motions filed before the beginning of a criminal trial; the defense case at trial.

Hearsay Within Hearsay

Not excluded by the rule against hearsay if each part of the "combined statements conforms with an exception to the rule."

Clergy-Penitent Privilege

Penitent may prevent clergy from testifying about information revealed by penitent in confidence.

Collateral Proceedings

Permits the use of unlawfully seized evidence in proceedings that are not part of a formal trial.

Real Evidence

Physical evidence other than testimonial evidence introduced to prove a fact at issue. Examples of real evidence include physical (clothing), documents (letters), and visual (photos).

Confrontation

Physical presentation of a suspect to a witness or victim.

Arrest

Police custody of an individual based on probable cause that they committed a crime.

Scrupulously Honored

Police may question an individual who has invoked their right to silence about a crime different in time, nature, and place after waiting a significant period of time and giving a fresh set of Miranda warnings. This means: 1. the police immediately ceased questioning. 2. the police suspended interrogation for a significant period. 3. the police provided a fresh set of Miranda warnings. 4. the second interrogation focused on a crime different in time, nature, and place.

Question First and Warn Later

Police may question an individual without reading Miranda, obtain a confession, and then read the Miranda rights and re-interrogate the suspect. The confession is admissible so long as the Miranda warnings function effectively to advise suspects of their rights.

Prejudice and Evidence of Prior Crimes to Impeach a Witness

Prejudicial Effect Less than probative value 1. Rule 403: Admit Evidence 2. Rule 609(a)(1)(B): Admit Evidence Equals probative value 1. Rule 403: Admit 2. Rule 609(a)(1)(B): Exclude Slightly outweighs probative value 1. Rule 403: Admit 2. Rule 609(a)(1)(B): Exclude Substantially outweighs probative value 1. Rule 403: Exclude 2. Rule 609(a)(1)(B): Exclude

Critical Stages of a Criminal Proceeding

Procedures between arraignment and trial at which a failure to provide the defendant a lawyer may prevent the defendant from obtaining a fair trial.

Marital Communications Privilege

Prohibits the revealing of confidential communications between spouses during marriage. 1. Scope: the privilege for confidential communication between husband and wife prohibits the use in court of statements made in confidence during marriage. The privilege applies if there is a legally recognized marriage under state law. Roughly half of the states provide that confidential conversations during marriage remain privileged following the end of the marriage either by spousal death or divorce. Encompasses all forms of communication between two spouses, including emails, tweets, letters, phone calls, conversation, situations in which one spouse observed the actions of the other spouse (i.e. theft). Applies to both civil and criminal cases. 2. Holder of Privilege: both spouses hold the privilege to refuse to disclose communications with the other and to prevent the other spouse from disclosing communications in court. In other words a spouse may not waive the privilege without the consent of the other spouse. 3. Waiver: a communication may not be privileged if overheard by other individuals, if the communications were read by other individuals, or if other individuals had access to the communication. If only one spouse is responsible for disclosing communications to a third party, the waiver only applies to the spouse who disclosed the information. The other party still may claim the privilege to prevent the other spouse from disclosing the information or testifying in court. 4. Exceptions: one spouse may testify against the other spouse when there are charges of domestic violence, crimes of violence against children in the family, neglect or desertion of the family, bigamy, and crimes against the property of a spouse. Some states have an exception for situations in which both husband and wife plan or enter into a conspiracy to commit a crime.

Marital Testimony Privilege

Prohibits the testimony of one spouse against the other spouse. 1. Holder: in some states, the defendant holds the privilege and may prevent the other spouse from testifying against them. In other states and in federal courts, the witness-spouse privilege holds the privilege and may testify or refuse to testify. The privilege starts on the date the parties marry one another and ends with the end of the marriage. 2. Scope: the husband wife privilege applies to criminal cases, and either spouse may be compelled to testify in civil cases (as long as they are married). Privilege only applies to adverse testimony against the interests of a spouse and does not apply to testimony that is beneficial to a spouse. 3. Procedure: the lawyer who plans to invoke the privilege on behalf of a spouse notifies the trial court judge of their client's interest. A hearing is held in which the other side is allowed to challenge the potential witness's authority to invoke the husband-wife privilege. The judge may either recognize the spouse's privilege to testify or may order the witness-spouse to testify. 4. Exceptions: the exceptions are the same as for marital communications privilege.

Abandoned Property

Property intentionally discarded by the owner.

Information States

Prosecutors in twenty-eight states may bring a felony charge based on "sworn information" and then may bring a charge either before a preliminary hearing or before a grand jury.

Expectation of Privacy

Protection from government intrusion; areas with a high expectation of privacy may generally not be searched without a warrant founded on probable cause.

Federal Rule 405 (a): Methods of Proving Character: By Reputation or Opinion

Provide proof of character "may be made by testimony" as to reputation in the community at the time chargers are filed against the defendant or by the witness's personal opinion. Reputation is what other people believe about an individual's character. On cross examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.

Federal Rule 404: Character Evidence; Crimes or Other Acts (a) Character Evidence (2) Exceptions For a Defendant or Victim in a Criminal Case (C)

Provides that "in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut any evidence that the alleged victim was the first aggressor."

Federal Rule 405 (b) Methods of Proving Character: By Specific Instances of Conduct

Provides that in cases which the character or character trait of a person is an essential element of a charge or defense, "proof may be made of specific instances of that person's conduct" in addition to reputation and opinion evidence.

Custodial Interrogation

Questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Cross-Examination

Questions regarding the direct testimony of a witness.

Knock and Announce

Refers to a requirement that police knock and announce their presence when serving a search warrant.

Standing Mute

Refusing to plead resulting in a court entering a "not guilty" plea for the defendant which preserves their right to trial.

Habit

Regular response to a repeated specific situation, such as eating the same food for lunch at the same time each and every day, or parking in the same parking space.

Legal Equation

Relevance=materiality + probative value

Competent Evidence

Relevant and material evidence admissible in court. This means there are no rules in preventing the admission of evidence.

Rule 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provide otherwise: 1. the United States Constitution 2. a Federal Statute 3. These rules 4. Other rules prescribed by the Supreme Court

Material Fact

Relevant to a fact at issue in the case.

Collateral Remedies

Remedies that are available following the exhaustion of direct appeals.

Peremptory Challenge

Removal of jurors without an obligation to state a reason.

Rehabilitation

Repairing the witness's credibility.

Consent Searches

Searches based on an individual's waiver of their 4th Amendment rights.

Burden of Production

Responsibility to produce sufficient evidence for the fact finder to consider the merits of a claim.

Federal Rules of Evidence

Rules on the admission of evidence in civil and criminal cases in the U.S. federal court system.

Special-Needs Searches

Searches that do not serve the normal needs of law enforcement.

Experiment

Simulation of conditions to determine reliability of trial testimony.

Pattern Jury Instructions

Standard jury instructions in a jurisdiction.

The Fourth Amendment and Searches and Seizures of Persons

Standards of Justification: 1. probable cause 2. reasonable suspicion 3. encounter Requirements: 1. reasonable person would conclude that individual has committed a crime. 2. reasonable person would believe that a crime has been or is about to be committed. 3. no justification required Scope of Search: 1. full body search for weapons/evidence. 2. frisk for weapons 3. none/may ask for consent

Stop-And Identify Statutes

State laws that authorize the police to require a citizen subjected to a stop and frisk to present identification.

Testimonial Evidence

Statements from a witness under oath or affirmation in a court proceeding. Most evidence is this kind.

Rape Shield Laws

Statutes limiting cross examination of victims and prohibiting evidence of their reputation for virtuosity.

Racial Profiling

Stopping or arresting individuals because of their race, ethnicity, religion, or other characteristic rather than because of their activity.

Closely Regulated Business

Subject to a number of regulations that are subject to warrantless searches without probable cause.

Federal Rule 404: Character Evidence; Crimes or Other Acts (a) Character Evidence (2) Exceptions For a Defendant or Victim in a Criminal Case (B)

Subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it (ii) offer evidence of the defendant's same trait

Prohibited Arguments

The American Bar Association Standards for Criminal Justice sets forth several types of prohibited arguments: 1. Intentional misstatement of evidence or misleading of the jury 2. Arguments that are not supported by the evidence that was introduced at trial. 3. Expressions of personal beliefs or opinions in regard to the truth or falsity of the evidence or in regard to the defendant's guilt. 4. References to issues beyond the trial itself or speculation on the social consequences of a conviction or of an acquittal. 5. Appeals that are calculated to inflame emotions and prejudices. 6. Comments that draw negative inferences from the defendant's assertion of their constitutional rights including a failure to testify or to consent to a search.

Confrontation Clause

The Confrontation Clause of the Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him."

Due Process Clause

The Fifth and Fourteenth Amendments to the U.S. term-142Constitution guarantee individuals due process of law. The Fourteenth Amendment Due Process Clause incorporates most of the protections of the Bill of Rights.

Selective Incorporation

The Fourteenth Amendment Due Process Clause incorporates only selected portions of the Bill of Rights.

Concurrent Sentences

The alternative to consecutive sentences, this means that the sentences for all criminal acts are served at the same time.

Curtilage

The area immediately surrounding the home, considered part of the home.

Crime-Fraud Exceptions

The attorney-client privilege does not require a lawyer to maintain information about a future crime or fraud confidential.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

Majority Opinion

The decision of a majority of judges on a court.

Arraignment

The defendant is informed of the charges against them and is required to enter a plea.

Rebuttal

The defense case at trial.

Federal Rule 803: Hearsay Exceptions: Availability of Declarant Immaterial

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (2) Excited Utterance: a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. (4) Statements for Purposes of Medical Diagnosis or Treatment: statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. (9) Records of Vital Statistics: records of data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law (12) Marriage, Baptismal, and Similar Certifications: statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

Federal Rule 803: Exceptions to the Rule Against Hearsay-Regardless of Whether the Declarant is Available as a Witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: (1) Present Sense Impression: a statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. (3) Then-Existing Mental, Emotional, or Physical Condition: a statement of the declarant's then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant's will. (8) Public Records: a record or statement of a public office if: (A) it set outs : (i) the office's activities (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law enforcement personnel (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation and (B) neither the source of information nor other circumstances indicate a lack of trustworthiness (10) Absence of a Public Record: testimony-or a certification under Rule 902- that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that: (A) the record or statement does not exist (b) a matter did not occur or exists, if a public office regularly kept a record or statement for a matter of that kind.

Federal Rule 412: Sex Offenses Cases: The Victim's Sexual Behavior or Predisposition (a) Prohibited Uses (1)(2)

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior (2) evidence offered to prove a victim's sexual predisposition

State Secrets Privilege

The government may refuse to give evidence and to prevent any person from giving evidence upon a showing of a reasonable likelihood of danger that the evidence will disclose a state or secret or official information.

No Bill

The grand jury refuses to indict an individual.

Medical Treatment-Diagnosis

The hearsay exception allows for "statements made for...medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations." The rule also states that the cause or source of the declarant's medical condition is admissible "insofar as reasonably pertinent to diagnosis or treatment."

Prima Facie

The judge determines whether the prosecution's evidence, if believed by the jury, is sufficient to convict the defendant at trial.

Probable Cause

The judge determines whether there is "fair probability" based on evidence presented during the preliminary hearing that the government will succeed in convicting the defendant at trial. The issue is whether there is probable cause to believe that a defendant may be convicted.

Dynamite Charge

The judge instructs jurors who are in the minority to reconsider the reasonableness of their views.

Judicial Discretion

The judge is required to make a decision based on their evaluations of the competing considerations, used when there is an evidentiary ruling in which there is no clear answer.

Husband-Wife Privilege

The marital communication privilege allows either spouse to prevent the other from testifying about confidential communications during marriage. The marital testimony privilege provides that either spouse may refuse to testify against the other and either spouse may prevent the other from testifying against the other.

Habeas Corpus

The most important collateral remedy for federal and state inmates and Latin for "you have the body". A writ of habeas corpus is an order issued by a judge to a government official (usually the warden of a correctional institution) to bring an imprisoned individual to court and explain why the individual is in detention.

Re-Cross Examination

The opposing counsel has this opportunity in which they are limited to asking questions intended to clarify the witness's testimony during redirect examination. Neither redirect nor re-cross examination is required and may be waived by lawyers.

Basic Fact

The opposing party can attempt to persuade the jury that the "basic fact" did not occur by attacking the credibility of the witness who testified about the basic fact or by presenting witnesses who question whether the basic face occurred.

Appellee

The party against whom an appeal is filed.

Appellant

The party appealing a lower court judgment.

Authentication

The party that wants to admit a document or object at trail has the burden of establishing the document or object is genuine, meaning the document or object is what the moving party claims it to be.

Stop and Frisk

The police may stop an individual in those instances in which they have a reasonable basis to believe that crime may be afoot. The police may conduct a frisk for weapons where the individual fails to dispel the officer's fear that the individual is armed and presently dangerous.

Stare Decisis

The practice of following the precedent established by previous court decisions.

Stare Decisis

The precedent.

Case-in-Chief

The presentation of the prosecution's evidence at trial.

Executive Privilege

The president has the right to refuse to reveal the confidential decisions-making process.

Federal Rule 605: Judge's Competency as a Witness

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Retroactivity of Judicial Decisions

The principle that a U.S. Supreme Court judgment should be retroactively applied to all cases that are yet to be filed and cases that have already been filed.

Independent Source Doctrine

The principle that provides that evidence unlawfully seized nevertheless is admissible where the police are able to demonstrate that the same evidence was also obtained through independent and lawful means.

Confidential Informant Privilege

The prosecution is not required to reveal the identity of an informant.

Brady Rule

The prosecution is required to turn over exculpatory information to the accused. It is a constitutional requirement that is binding on both state and federal prosecutors.

Burden of Persuasion

The prosecution must prove every element of a criminal charge beyond a reasonable doubt.

CH 1: INTRODUCTION Burden of Proof

The prosecution must prove every element of a criminal charge beyond a reasonable doubt.

Transactional Immunity

The prosecutor agrees not to prosecute the witness for any crimes the individual admits.

Opening Statement

The prosecutor and defense attorney each indicate at the beginning of the trial the evidence that they plan to introduce at trial.

Question of Admissibility

The question of admissibility of relevant evidence posing a "danger" or involving "considerations" involves three steps: 1. Probative Value: the judge determines the probative value of evidence. 2. Dangers: the judge must find one of the specified dangers (unfair prejudice, confusion, misleading the jury) or considerations (undue duty, wasting time, or needlessly presenting cumulative evidence). 3. Balance: the court balances the probative value of the relevant evidence against the risk of prejudice to the defendant, confusion, or misleading the jury or considerations of delay, waste of time, or needlessly cumulative evidence and "may" (has the discretion to) exclude the evidence if the dangers or considerations listed in Rule 403 substantially outweigh the probative value of the evidence.

Direct Examination

The questioning of a witness by the party who called the witness to testify.

Automatic Reversal Rule

The requirement that a violation of fundamental constitutional right during trial results in the reversal of a conviction on appeal.

Discovery

The right for each side to have warning of the evidence that the other side will present at trial. This promotes a fair, efficient, and truthful trial and prevents the prosecution from withholding evidence that could result in the conviction of an innocent individual. The underlying philosophy is that a trial is a search for the truth rather than a competitive sporting contest. Discoverable evidence is limited to: 1. The defendant's statements 2. The defendant's criminal record 3. Documents and tangible evidence 4. Reports of medical examinations and tests

Right of Allocution

The right of a defendant to make a statement to the judge prior to sentencing.

Final Judgement Rule

The rule that an appeal may be taken only following a verdict.

Beyond a Reasonable Doubt

The standard for conviction in a criminal case.

Declaration Against Interest

The statement when made must be against an important interest of an absent declarant. A reasonable person in the same position would not have made the statement unless they believed it to be true.

Wade-Gilbert Rule

The suspect has a constitutional right to a lawyer at all post-indictment lineups and confrontations. Absent the presence or waiver of a lawyer, the results may not be introduced by the prosecutor at trial. A prosecutor may not ask a witness for an in-court identification unless the prosecution establishes by clear and convincing evidence that the in-court identification is not the product of a tainted identification procedure.

Initiation

The test for waiving a prior invocation of counsel under Miranda.

Implied Waiver

The waiver of a right as indicated by an individual's words and actions and the totality of the circumstances.

Guilt Beyond a Reasonable Doubt

There is no "reasonable doubt" in the mind of a reasonable person that the defendant is guilty.

Bad Logic Prejudice

This happens when a jury disregards the evidence and convicts the defendant based on a factor that is only marginally relevant or irrelevant to the case, such as dislike of a defendant because of their gang affiliation or membership in a racist organization.

Real-Testimonial Evidence

This includes testimonial evidence presented in a tangible form, such as copies of affidavits, depositions, and transcripts of a witness's prior testimony that is introduced at trial.

Demonstrative Evidence

This includes visual aids intended to assist the fact finders to understand the facts involved in the case.

Documentary Evidence

This includes written information as well as video and audio recordings. This may take the form of written confessions, fingerprint cards, notes, reports prepared by experts, X-rays, emails, photographs, and recordings from surveillance cameras.

Four Situations in Which Interlocutory Appeal Can Be Filed

This is limited to issues that cannot be effectively corrected by waiting until the final judgement and do not affect the determination of a defendant's guilt or innocence at trial. 1. Bail: a defendant may appeal excessive bail. A judgment following trial that an individual has been subjected to excessive bail would not provide remedy for a defendant who has not met bail and who has been incarcerated for many months. 2. Double Jeopardy: the proscription against double jeopardy protects an individual against being convicted more than once for the same crime as well as being subjected to a second trial for the same crime. 3. Competency: an individual who is to be forcibly medicated in order to be competent to stand trial may file an interlocutory appeal. 4. Speech or Debate Clause: the Speech or Debate Clause of the U.S. Constitution protects a member of Congress from standing trial and being held legally responsible for statements made in Congress.

Character

This is typically established through the testimony of character witnesses. General tendencies such as honesty, violence, trustworthiness, and peacefulness.

First Impression

This is when a case that presents an issue that a court has never previously decided.

Discretionary Appeal

This means that the supreme court is not required to review the decision of a lower court and will do so at its discretion.

De Facto Arrest

This occurs when an officer does not directly tell you that you are under arrest but, based on the totality of the circumstances, a reasonable person would conclude that they are under arrest.

Rule 11 of the Federal Rules of Criminal Procedure

This requires that before accepting a plea of guilty or nolo contendere, the judge must address the defendant personally in open court and ensure that they understand the consequences of a guilty plea. The judge must cover: 1. Nature of the criminal charges: they are required to explain the charges to which the defendant is pleading guilty and the possible criminal sentence. 2. Factual basis of the plea: they should explain how the specific facts of the defendant's case fit the requirements of the criminal charge to which the defendant is pleading guilty. This is intended to ensure that the defendant does not plead guilty to a criminal charge that does not fit the facts of the case. 3. Voluntary: courts may not accept a plea of guilty without first determining that the plea is voluntary and is not the result of force or threats or promises that are not explicitly set forth in the plea bargaining. A prosecutor who offers a defendant a choice between alternatives that the defendant is free to accept or reject is not considered to have coerced a guilty plea. The trial court judge is also required to inform the defendant that a guilty plea will result in the waiver of the defendant's right to raise constitutional violation committed prior to the entry of the plea. This includes challenges based on the lawfulness of arrest, unlawful searches and seizures, coerced confessions, denial of a speedy trial, and entrapment.

Modus Operandi

This type of evidence is admissible to prove the defendant's identity as the perpetrator of the crime or may be used to rebut a defendant's denial that they committed the crime with which they are charged with.

Misleading Evidence

This type of evidence may be excluded under Rule 403, in which the evidence is that the jury may give undue importance. Examples of this type of evidence is a lie detector or polygraphs, which has been held in courts to lack scientific accuracy.

Confusing Evidence

This type of evidence may be excluded under Rule 403, in which the evidence may confuse the jury.

Use Immunity

Under this, the government agrees not to use a witness's grand jury testimony to prosecute them.

Federal Rule 705: Disclosing the Facts or Data Underlying an Expert's Opinion

Unless the courts say otherwise, an expert may state an opinion-and give the reasons for it-without first testifying to the underlying facts or data. But the expert may be required to disclose those facts or data on cross-examination. An expert witness may base their opinion on facts or data "made known to the expert" at trial. This is accomplished through the use of a hypothetical question in which the lawyer asks the expert to assume certain facts and ask the expert whether they have formed an opinion based on the assumed facts.

Judge's Instructions

Usually include the following: 1. The judge decides the law and the jury is the finder of the fact. 2. The defendant is presumed innocent until proven guilty beyond a reasonable doubt. 3. The burden is on the prosecution to establish guilty beyond a reasonable doubt. 4. The jury is required to find each of the elements of the crime with which the defendant is charged beyond a reasonable doubt. 5. The jury is told the procedures that are to be followed in deliberating the defendant's guilt or innocence.

Emergency-Aid Doctrine

Warrantless entry by the police into the home to provide assistance to an individual.

General Warrants

Warrants allowing colonial authorities to search anytime and anywhere.

Laying the Foundation

When a witness testifies about the steps followed to protect the integrity of physical evidence found at the scene of a crime.

Statement of Personal or Family History

When family relationships are at issue, a party may rely on hearsay to establish births, deaths, marriages, and adoption and other facts of personal and family history.

Open Fields

Why they are not provided with 4th Amendment protections according to the Supreme Court: 1. Purpose: the 4th Amendment is intended to protect "intimate" activities. There is no interest in protecting the type of activities that typically take place in open fields, such as the cultivation of crops. 2. Access: open fields are more accessible to the public than are houses or offices and are easily monitored from aircraft.

Contemporaneous Objection Rule

With respect to searches, a requirement that the search must be undertaken immediately before the arrest, at the same time as the arrest, or immediately after the arrest; allows the judge to decide whether a question is permissible before the jury hears the witness's answer.

Photographic Displays (Non-Corporeal Identifications)

Witness identification of the perpetrator of a crime through the use of photographs.

Functional Equivalent

Words or action on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.

Interrogation

Words or action on the part of the police that are likely to lead a suspect to incriminate themselves. Interrogation involves either express questioning or the functional equivalent of express questioning.