Criminal Evidence and Procedures
Criminal Evidence and Procedures CJA 4530
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This 10 page Class Notes was uploaded by Candida Hayes on Wednesday September 23, 2015. The Class Notes belongs to CJA 4530 at Middle Tennessee State University taught by Lance Selva in Fall. Since its upload, it has received 31 views. For similar materials see /class/212959/cja-4530-middle-tennessee-state-university in Criminal Justice at Middle Tennessee State University.
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Date Created: 09/23/15
Documentary Evidence gtgtgt Writings Documents Deeds Wills ect General Rule Before a writing or any other document can be put into evidence that writing must be authenticated by proof which shows that it is what it purports to be P Three possible problems with Admissib ity Authenticity Ways to Authenticate a Document A Pretrial Stipulation All Documents must be given to both sides for review Both parties agree not to contest certain Documents A Eyewitness Testimony Saw the Document being written and executed signed Most common way used 39 Example Wills A Tennessee Law states that for a will to be legal there must be two Subscribing witnesses who are not family members A Handwriting Veri cations Used for handwritten documents Two Ways to Verify Handwriting 39 Lay Witness Opinion A Untrained ordinary person who knows that persons handwriting 39 Expert Witness Opinion Person who is trained in handwriting veri cations A Circumstantial Evidence Ancient Documents Rule Have to be 30 years or older Must be found in a location were a Document of that sort would normally be stored Condition of the Document must be free of suspicion Self Authenticating A So reliable that you don t have to present any evidence to show that they are what they appear to be A Most documents are not Self Authenticating A Examples Certified copy of a Public Record Newspaper Magazine Official Publications Acknowledged Document o 0 Best Evidence Rule General Rule Proving the terms of a writing where the terms are Material the original writing must be produced Secondary Evidence in the form of copies of the document regarding it s contents is permitted only after it has been shown that the original in unavailable for some reason other then the misconduct of the proponent A A copy may be used ifboth parties agree to it A Most strictly applied to Where the writing or document is a legally operative or dispositive instrument such as a Contract Deed Will or Divorce Decrees 39 Legally Operative A contract where something has to be done A Example A lease where you agree to pay rent and not destroy the apartment 39 Dispositive Instrument Where somebody is going to dispose of something A Example Deed or a Will Where the knowledge of a witness concerning a fact comes from having read it in the document 0 Must present actual proof and cannot have just oral testimony A Example Contacts or Deeds Most used with Contracts Deeds Wills and Divorce Decrees Where does the Best Evidence Rule not apply A When the Document comes into play after the fact Parol Evidence Rule Evidence outside the written contract A If an agreement is reduced to a writing that writing is the agreement and is the only Evidence of it All prior and contemporary negotiations become merged into the written agreement Parol Evidence is not admissible to add to detract or to alter the agreement that is written A The rule only applies to negotiations that are conducted prior to and contemporary leading up to the document being signed Hearsay Rule Testimonial Where people get up on the stand to Testify in court Tests of Liability A A o o o 0 To establish the witnesses Competency to Testify Rule of Competency Every person is competent to be a witness except as otherwise provided within these rules Every witness must have personal knowledge of the matter they are Testifying about Each Witness must testify that they will testify truthfully either by Oath or Af rmation Four basic quali cations the be deemed Competent to Testify 39 Ability to Observe 39 Ability to remember or recall 39 Ability to relate or communicate 39 Application of the Oath to speak the truth Common Law Disqualifications Old Rules Nonreligious people A No longer the case Insanity A No longer the case Those who have already committed crimes such as felonies A No longer the case Infancy A Current General Rule There is no precise age where an infant are disqualified from giving testimony A It all comes down to the individual A Legal Incapacity 0 Under age seven there is a conclusive presumption that the child does not have the legal compasity to commit a crime 0 The child cannot form the necessary mental state to commit the crime 0 Ages 710 it is a rebuttable presumption that the child cannot form the necessary mental state to commit the crime The Judge who is hearing the case A Juror in the current case Dead Man Act A We disqualify anyone who will benefit financially from testifying about what somebody said the them before their death A Used with Wills A Only applies to civil cases How Courts go about questioning A Steps 0 o o 0 Direct Examination Cross Examination 39 Wide Scope Cross Examination Can ask questions about any other issues beyond the issues brought up during the Direct Examination as long as the questions are Material and Relevant to the case A Tennessee has a Wide Scope Cross Examination Limited Cross Examination Can only asked questions about issues brought up during the Direct Examination Redirect Examination Can only ask questions that deal with the same areas brought out by the other party Recross Examination Can only ask questions that deal with the same areas brought out by the other party Leading Questions A question that indicates to the witness a desire a yes or no response A General Rule Leading Questions are objectionable and are not allowed 0 o o o 0 Exception In Cross Examination Leading Questions are allowed Exception Elicit introductory material out of the way Exception When the witness is having a problem remembering something or having a communication issue Exception When the witness springs some surprise testimony that is contradictory to what you thought their testimony was going to be or become hostile Exception In Civil Cases when you call the Adverse Party as a witness you may use Leading Questions Misleading Questions A question that is unfair It assumes as being true certain facts that actually are in controversy Using writings and documents when a Witness has forgotten certain things A Usually pops up when a Case is very old A General Rule Witnesses can not read their Testimony from a prepared document 0 Exception Present Recollection Revived 39 Person uses a document to refresh their memory Exception Past Recollection Recorded Substitute that document to replace the persons Testimony A Person must state that with the document they still can39t remember A Witness must state that those documents are theirs Called Adopting A Must state that when is in that document is true and accurate That document does not get entered in as an Exhibit A Completeness Rule The other party can ask for that person to read any other portion of that document and can make that document an Exhibit Opinion Testimony A General Rule Witnesses should testify to facts within their personal knowledge and is up to the Jury to draw conclusions from those facts A Lay Witnesses o o 0 General Rule Opinions by Lay Witnesses are limited Rule 701 Two requirements for Lay Witnesses The opinion must be rationally based on the perception of the witness The opinion has got to be helpful to the Jury Different situations where opinions can be given by Lay Witnesses General appearance condition Emotional state Sensory recognition Handwriting telephone voicemails Speed Acting crazy A Expert Witnesses Requirements Subject matter must be appropriate for expert test A Expert testimony is admissible if the subject matter is one requiring scientific technical or other specialized knowledge and which substantially assists the Jury in understanding the evidence The witness has to be qualified as an expert Must possess a reasonable degree of probability regarding their opinions or conclusions The opinion must be supported by a proper factual basis A Accepted methods of establishing a Factual Basis Personal Observation 0 o Hypothetical Question 0 Facts given to the expert outside of court which are commonly relied upon by experts in that field Cross Examination A It is an absolute right in every trial A Want to cast some doubt on the witness A Scope of Cross Examination 0 0 Limited Scope Can only asked questions about issues brought up during the Direct Examination Wide Scope Can ask questions about any other issues beyond the issues brought up during the Direct Examination as long as the questions are Material and Relevant to the case 39 Tennessee uses this A Impeachment Casting an adverse re ection on the truthfulness of the witness being Cross Examination 0 o 0 Also may introduce Extrinsic independent evidence to cast some doubt on what that witness is saying General Rule Whoever is questioning a person on Cross Examination cannot Bolster their witnesses Testimony Bolster Pu up support or reenforce a witnesses testimony Exception You cannot Bolster your witnesses Testimony until your witness as been Impeached Exception On Direct Examination on issue of a Timely Complaint the witness can be Bolstered on their testimony by bringing in the fact that they made a Timely Complaint to the police Exception With a Prior Identi cation A Prior Identification Someone Testifying about someone39s identity Impeaching you own witness 39 General Rule The credibility of a witness can be attacked by any party including the party that calls that witness Impeachment Techniques Using prior inconsistent statements A A P Must lay a foundation before you can bring in that statement Can t just throw the statement in there you must first set the stage with time place who the statement was given too and the subject matter of the statement Then you must give the witness the opportunity to explain any inconsistencies or deny that they made a prior statement After you are allowed to introduce that prior inconsistent statement with Limited Admissibility Can only be used to discredit that witnesses credibility Exception Ifthat prior statement is made under Oath it can be used for its truth value Showing someone is bias or has an interest in the case Relatives or friends of the defendant Witnesses that have been promised anything Witnesses that are being paid Bringing out a prior conviction A General Rule This can be brought out through Cross Examination or by introducing Extrinsic evidence Requirements There must actually be a conviction not just an arrest 39 General Rule Any felony conviction can be used to Impeach the credibility of a witness The witnesses conviction must not damage the defendant The probative value must out way that General Rule for Remoteness in Time Cannot use a conviction that is more then ten years old from the date they were released from the Criminal Justice Criminal Evidence and Procedure 10132009 Testimonial evidence every witness is presumed competent to give testimony unless proven otherwise Testimonial attributes a witness may possess one more than another which may still be okay Every witness must have the ability to observe or perceive ie car wreck a witness must have been there to give a valid statement Ability to remember or to recall an event ie car wreck liability coverage victim in wreck lost conscious memory after the initial wreck and therefore probably will not be deemed competent to testify Ability to relate person being able to communicate their testimony to the jury ie kid testifies in front of adults and locks up 0 There is no precise age deems a witness to be incompetent from giving testimony ie adult in first stages of dementia who cannot form a coherent testimony Appreciating the evidence oath person swears or affirms to tell the truth Every witness prior to taking the stand must be sworn in affirmation The term under God and the hand on the Bible are NOT required f bringing in a child witness usually she will not be sworn in o The judge may simply ask the child if he knows what lying is etc Mental and moral standards will not preclude a witness from taking the stand except Every witness must have personal knowledge of that which they are testifying about Witness must declare that they will testify truthfully Common law old ways disqualified a person from testifying if Lack of belief in God Infancy no definitive age of incompetency Insanity could not give testimony Conviction of a crime precludes them if committed a felon If married to person on trial you could not give testimony against spouse Legal incapacity under 7 years of age Conclusive irrebuttable presumption cannot present any evidence to the contrary Cannot be held criminally responsible for an act because they cannot form the necessary mental state to commit a crime Ages 710 we have rebuttable presumption State can present evidence to show maturity level and were able to know right from wrong Adjudicated Insanity formal can give testimony as long as they meet the four attributes Conviction of a crime felonsmisdemeanants are ok as long as they meet the four attributes Marriage does not exclude you from giving testimony but you can refuse to give testimony A presiding judge cannot step off the bench and testify as a witness in a case he is presiding O O O 0000 o Jurors cannot testify in a case in which they are a part because they would not be impartial and would place more emphasis on their testimony 0 Dead Man Act a question arises about something a recently deceased person has said or done f going to receive something and the person who allegedly gave the statement is dead eceiving person cannot raise the statement to benefit himself 0 Examinationquestioning of witnesses State must present their entire criminal case against the persons called caseinchief Direct examination prosecutor examines a witness Cross examination defense attorney may examine a witness TN has wide scope examination which does not limit the defense to topics brought forth by the prosecution as long as it is relevant Redirect examination prosecution can only examine the witness on what the defense has brought forth Re cross examination defense can go again 10222009 Leading questions objectionable leading a witness to obtain desired outcomes and may be objected to when an attorney is doing direct examination 0 When are leading questions permissible When not dealing with crucial matters of the case During crossexamination When you want to illicit preliminary information ok even during direct examination ie Mr Smith are you 2 typically yesno answers To assist a witness to become more comfortable on the stand ie a child senile individual etc Hostile changing statements detrimental to defense or uncooperative witnesses ln civil cases Typically an attorney will call the opposing person to the stand first because he will be most nervous Misleading presuming something to be true and asking questions assuming some fact to be true Memoranda to refresh a person s memo 0 General rule witness cannot read hisher testimony Exception 1 memodocumentreport can be used to refresh a witness memory Present memory revived Exception 2 if a witness has insufficient recall after reviewing documents and has laid a proper foundation he can introduce the documentsnotes into evidence Past recollection recorded Party wanting to introduce evidence must 0 Adopt the document as being made by him and verify that the facts were recorded shortly after the event in question Acknowledge that the facts in the document were accurate Acknowledge that presently he cannot remember the facts contained in the document 0 The writing cannot be introduced as an exhibit by the party wanting to introduce it into evidence because jurists typically will place unfair weight on the written document and will be unduly disadvantageous to the opposition Exception other party can have witness read whatever they want from a document and can have the document entered as an exhibit to be taken by the Jury for deliberation Opinion testimony Lay witnesses opinions are generally limited To allow opinions It must have been rationally based on the witness perception It must be helpful to the jury in some way Can give opinion on speed of a moving vehicle 00 10272009 Opinion testimony 0 Foundation requirements Subject matter must be appropriate Witness must be qualified as an expert Must establish that the witness has special knowledge skills training etc Must possess a reasonable probability regarding his opinion not I MAcaused B No guessing and no speculation Opinion must be supported by a factual basis the source of information for an opinion may be gained by Hypothetical questions Personal knowledge observation 0 Mechanic who can look at a fender bender and tell price of repairs Information provided outside of court to the expert which is commonly relied upon by experts in a particular field 0 ie a doctor treating a patient based on xrays and other information obtained by nursesother doctors 0 Standards for when an expert is dealing with scientific testimony Merrell Dan Standard Whoever wants to proffer use the opinion must show the court that the testprinciple involved is the result of reliable principles and methods which is determined by the judge
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