Week 11 Notes
Week 11 Notes CJ 342
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This 4 page Class Notes was uploaded by Nicole Wolfe on Thursday April 7, 2016. The Class Notes belongs to CJ 342 at University of North Dakota taught by Kristi Venhuizen in Spring 2016. Since its upload, it has received 34 views. For similar materials see Criminal Procedure in Criminal Justice at University of North Dakota.
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Date Created: 04/07/16
Chapter 18 part 2 Polygraph evidence – not admissible because accuracy not scientifically demonstrated to a reliable certainty Battered Woman Syndrome o Expert testimony being allowed in many courts DNA evidence – generally accepted as reliable evidence o Must meet standards of reliability in order to be admitted Objections: o Hearsay evidence – oral or written statements by a person other than the one testifying in court Statements offered as proof of the mater asserted Can the person be cross-examined? o Exceptions: excited utterances, dying declarations, reputation, business records, etc. o Crawford v Washington – bars out of court testimonial statements by a witness unless the witness is unavailable and the defendant has had a prior opportunity to cross- examine the witness Issue is the definition of “testimonial” N.D.R. Evid. 802 N.D.R. Evid. 803 Best evidence rule – original document must be produced when possible or an explanation given o Gone away from hard copies of original records because everything is digital now Opinion evidence – witnesses to testify to facts of which they have personal knowledge o Cannot give opinions beyond their common experience and understanding o Ex: use of skid marks to estimate speed o Judge has discretion o N.D.R. Evid. 701 Privileged communication: o Attorney-client privilege can be claimed by either the client or the attorney on behalf of the client Client can waive the privilege o Marital privilege can be asserted by either spouse to prevent disclosing privileged matters Spouse can testify to observations of criminal activity or if a crime against the spouse or a child Survives termination of the marriage by death or divorce o Clergy-penitent privilege can be claimed by the clergy on behalf of the penitent True for all religions o Other privileges: Physician and patient Psychotherapist and a patient Accountant and a client N.D.R. Evid. 502 N.D.R. Evid. 503 N.D.R. Evid. 504 N.D.R. Evid. 505 The Trial Process Trial is the centerpiece of the criminal justice system o Judges – serves as the umpire of the process Can be elected or appointed o Judges sometimes interrogate witnesses Putting witnesses under the rule (sequestering) o Witnesses cannot be in the room during the trial so that they won’t change their story based on new evidence heard during the trial o If the request is made it must be granted o N.D.R. Evid. 615 Opening statements – designed to orient the jurors o Usually waived during a bench trial Prosecutor’s case: o Prove the essential elements of the offense beyond a reasonable doubt o Call witnesses to support the charge against the defendant Cross-examine witnesses: o Sixth Amendment guarantees the defendant the right to confront the witnesses against him Only ask questions regarding the testimony Ask questions that tend to impeach the witnesses credibility or demonstrate bias o Impeachment: Showing an inability to see/hear what testified to Prior conflicting statements Witness has criminal record Reputation for untruthfulness Show bias, prejudice, or motive to misrepresent the facts Child Shield Laws: o Prosecution must show and the court must make particularized findings that a child victim of sexual abuse would suffer unreasonable and unnecessary mental or emotional harm if the child were to testify in the presence of the defendant o Coy v Iowa, 487 US 1012 (1988) – screen placed in courtroom shielding the 13 year old witness from seeing defendant, violated constitution o Maryland v Craig, 497 US 836 (1990) – Sixth Amendment not violated by using screen Directed Verdict or Judgement of Acquittal o Made by the defense at the close of the prosecution’s case o Judge must view the evidence in the light most favorable to the prosecution o If the motion is granted, the case is dismissed o N.D.R. Crim. P. 29 Fifth Amendment states that a defendant does not have to be a witness against himself o Applies to the states through the Fourteenth Amendment o N.D.C.C. 29-21-11 Rebuttal witnesses – at the close of the defendant’s case, the prosecution can call additional witnesses to refute any evidence presented by the defendant Jury questioning – trend to allow jurors ask questions of the witnesses o Practice not being encouraged ND doesn’t practice Practice dying out o Jurors typically allowed to take notes Jury Instruction Conference: o Parties may submit proposed instructions prior to trial o Agreed to by the parties prior to closing argument o N.D.R. Crim. P. 30 Closing arguments: o Prosecution goes first, followed by the defendant, and the prosecution gets an opportunity to give a rebuttal o Cannot state a personal belief about the guilt or innocence of the defendant o Can only explain what the evidence shows o Prosecutors cannot make inflammatory statements; defendant’s given more latitude N.D.R. Crim. P. 29.1 Judge instructs the jury: o Reads the jury instructions and often provides a copy to each juror o Explains the need for a unanimous verdict o Directs to select a foreperson or jury leader Jury deliberation: o Jury kept together in private to reach a verdict N.D.C.C. 29-22-02 o Sequestration o Deadlocked or hung jury Allen v US, 164 US 492 (1896) Judge brings the jury back in and gives them further instruction and encouragement N.D.C.C. 29-22-05 N.D.C.C. 29-22-06 Jury pardons – when jurors disregard the evidence and the judge’s instruction on the law and acquit a defendant or convict them on a lesser offense then charged o Jury nullification o Not subject to appeal so difficult to gauge how often this happens Verdict: o Must be unanimous (some exceptions) o Verdict handed to the judge to review and then read by the jury leader or clerk into the record o N.D.C.C. 29-22-14 Polling the jury – ask each juror “Is this your true and correct verdict?” o Optional by either party or on the judges own motion o N.D.R. Crim. P. 31 Post-trial motions: o Motion for a new trial o Based on allegations that errors were made o N.D.R. Crim. P. 33
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