criminal evidence 6th edition norman m. garland chapter 3 evidence—basic concepts

Criminal Evidence 6th Edition

Norman M. Garland

Chapter 3 Evidence—Basic Concepts

© 2011 The McGraw-Hill Companies, Inc. All rights reserved.

Describing EvidenceThe Four General Categories

o Testimony of witnesses o Real, or physical, evidence o Documents, or writingso Demonstrative evidence, i.e.,

visual or audiovisual aids for the jury


Other ways ofCategorizing Evidence

o Direct evidence: witnesses’ testimony the jury need not draw an inference from in order to find the facts to exist.

o Circumstantial evidence: an inference must be drawn for the jury to find the facts to exist.

o Competent (or incompetent) evidence.o Some jurisdictions classify judicial notice

and presumptions as kinds of evidence, although they are actually substitutions for evidence.


Admissible EvidenceTo be admissible in court, evidence must be:

o Relevanto On balance,

more relevant than unfairly prejudicial

o Otherwise competent or admissible McGraw-Hill


Relevant Evidenceo All evidence, in the first instance,

must relate to the issues of the case.

o If the evidence is not connected to those issues, it should not be admitted.

o If the evidence is related, it is said to be relevant.


Relevant Evidence and the FRE

o Relevant evidence is defined by FRE 401 as that "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."


The Exclusion ofOtherwise Relevant Evidence

Evidence may be excluded from trial for reasons that have nothing to do with logical relevance:

o It has a tendency to unduly prejudice or inflame the minds of the jury.

o It would tend to cause confusion or create so many side issues that trial time would be wasted if it were admitted.

o It is so remote or speculative in time or place that only a weak logical inference can be drawn from it.


The Balancing Test of Legal Relevancy:

Just what do those scales mean?FRE 403

o “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

PhotoDisc/Getty Images


Material Evidenceo Materiality refers to whether or

not a fact is one of consequence to the case.

o The issues of balancing and competency are not included in the definition of materiality.

o (It) is appropriate to speak of material or immaterial facts as part of the formula for relevance.


Prima Facie Evidenceo Prima facie evidence is that

evidence that, standing alone, unexplained or uncontradicted, is sufficient to establish a given fact, or group of facts constituting the party's claim or defense.

o In other words, it is the bare minimum of evidence necessary to sustain a position by the side offering the evidence.


Three Confusing Cs of Evidence

o Corroborative Evidenceo Contradictory Evidenceo Cumulative Evidence


Corroborative Evidenceo Corroborative evidence is

evidence that is supportive of other evidence already given, tending to strengthen or confirm the prior evidence introduced.


Contradictory Evidenceo Contradictory evidence is

evidence used to prove a fact contrary to what has been asserted by a party or witness.


Cumulative Evidenceo Cumulative evidence is repetitious

of earlier testimonial or tangible evidence and corroborative evidence is additional evidence of a different character supporting the same point.


Judicial Noticeo These facts, of which a judge may take

judicial notice, must first be "not subject to reasonable dispute."

o Generally, such undisputed facts fall within two categories. They are either:(1) generally known within the territorial

jurisdiction of the trial court or (2) capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned.


Civil v. CriminalTreatment of Judicial Notice

o Judicially noticed facts are treated differently in civil and criminal trials.

o According to FRE 201(g), o "[i]n a civil action or proceeding, the

court shall instruct the jury to accept as conclusive any fact judicially noticed.

o In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.


Notice of Public Statuteso Most jurisdictions

permit judges to take judicial notice of all public statutes, or laws, of the United States as well as those of their own state.

o Under the FRE most of the states as well as federal court judges take judicial notice of statutes of "sister states." Royalty-Free/CORBIS


Notice of Geographical Factso There are many well-established

geographical facts that fall within the category of judicial notice or knowledge of the court.

C. Sherburne/PhotoLink/Getty Images


Notice of Words, Phrases, and Abbreviations

The court will take judicial notice of commonly known words, phrases, or abbreviations.

o The words "whiskey" or "wine" will be recognized as intoxicating beverages.

o The abbreviations “A.M." and “P.M." are well known and will be accepted in court.

o Slang will be judicially noticed.


Notice of Time, Days, and Dates

o Many facts about time are judicially recognized, such as 24 hours make a day, or 7 days make a week.

o January first is recognized as the beginning of the new year and July 4th is accepted as a national holiday in the United States.

o However, because of differences in religious beliefs, Sunday is not accepted as being the Sabbath.


Scientific and Medical Factso For a scientific or medical fact to

fall within the realm of judicial notice, it must be an established fact.

o Scientific and medical theories progress from the unknown to the debatable, to the generally accepted, and then become established facts.


Scientific Judicial Notice: Good for Law Enforcement

o Courts take judicial notice of radar as a means of determining speed, although the accuracy and efficiency of the apparatus will depend upon the officer who uses it; the officer must convince the jury of his or her ability.

Royalty-Free/CORBIS


Additional Illustrations of Judicial Notice and Law Enforcement

o The courts routinely accept the analysis of: o fingerprintso DNAo bodily fluid secretionso blood typeso hair structure to connect a suspect was to a

crime scene

o However, the issue of whether the questioned fingerprints, secretions, blood, or other materials match the criminal defendant is a fact the jury will decide.


Controversial Issues: Not all Science is acceptable

o The polygraph, or lie detectoro The universal rule in the United States is that

polygraph results are inadmissible in court, even though many law enforcement agencies and other organizations continue to use them for investigative purposes.

o The effects of hypnosis to stimulate a person's memory. o Witnesses whose memories have been hypnotically

refreshed are not banned from testifying, but there are severe restrictions upon the use of the portion of the testimony that may have resulted from hypnosis. Most courts refuse to recognize the validity of such memory recall techniques.


Presumptions of Law or Facto When allowed to operate, a

presumption permits the fact-finder (often the jury) to conclude that, because a party has introduced evidence that one fact exists (called the "basic fact“), the jury may (or must) conclude that another fact (called the "presumed fact“) exists, even though the party has not introduced any other evidence of the existence of the presumed fact.


Inferences and "Conclusive" Presumptions Distinguished

o An Inference is the drawing of a conclusion from an observation or series of observations.

o A conclusive presumption is one that the law demands or directs be made from a set of facts and cannot be refuted by other evidence. o Conclusive presumptions also

sometimes referred to as "irrebuttable" presumptions.


Conclusive presumptions: A Prohibition on their Usage

o Conclusive presumptions cannot be used to prove an element of the crime charged in criminal cases because, as in the case of a court taking judicial notice, imposing such conclusive presumptions would relieve the prosecution of the burden of proving the defendant guilty beyond a reasonable doubt.


True Presumptionso A true presumption applies in this

way: if the basic fact is found to exist, then the jury must find the presumed fact to exist in the absence of evidence to the contrary being introduced.


The Policy Behind Presumptions

o Presumptions are conclusions that the law requires to be drawn from certain sets of facts.

o They are recognized because they follow in the normal course of human experience.

o Experience has proven that each time a given set of facts arises, the end results of the set are very likely to be the same.

o Under these circumstances, it is logical to presume that the same results will continue to take place.

o The acceptance of presumptions is also based on the social habits of human beings.


The Supreme Court’sTest for Presumptions

o The Court has declared that, at a minimum, the presumed fact must flow from the basic fact measured by a standard of a preponderance of evidence.

Royalty-Free/CORBIS


The Effects of Presumptions: Jury Instructions and Burden of Proof

A presumption has very limited, but significant, effects.

o First, is what the jury is told about the presumption.

o Second, is the effect on the burden of proof in the case. The burden of proof has two elements:(1) the burden of producing evidence

(production burden) and(2) the burden of persuading the trier of fact

(persuasion burden).


The Shifting of the Burdeno A presumption usually affects just

the burden of production by shifting it to the party against whom the presumption operates.


Distinguishing Mandatory From Permissive Presumptions:

Presumptions in Criminal CasesPresumptions may be incorrect.

o For this reason, the law usually provides for rebuttable presumptions, which means the opponent of the presumption may introduce evidence to rebut the presumption's conclusion.

A true presumption requires the jury to find the presumed fact from the existence of the basic fact and may be called a mandatory presumption.


Presumptions Not Evidenceo Today, in an overwhelming

majority of jurisdictions, a presumption is not evidence.

o This is an important point, for if a presumption is classified as evidence, it may confuse the jury into giving the presumption as much weight as testimony of witnesses and tangible evidence.


Stipulationso There are other facts that may be

presented during a trial without formal proof being required.

o These are facts upon which the parties and their attorneys agree.

o This agreement may take place either before or during the trial.

o Once agreement has been reached, it will not be necessary to call witnesses to present the facts.


Some Common Rebuttable Presumptions and Their Status Under

the LawPRESUMPTION OF INNOCENCE

o Perhaps there is no better known rebuttable presumption than that "a person is presumed innocent until proved guilty," or, as it is sometimes stated, "a person is presumed innocent of a crime or a wrong."

PRESUMPTION OF SANITYo There is a general presumption that all

persons are sane. This presumption of sanity stems from the fact that sanity is the normal human condition.


Some Common Rebuttable Presumptions and Their Status Under

the Lawo Children under a certain age are

not capable of committing crime.

(c) Comstock/PunchStock


The Common Law Ruleo The common law rule "conclusively

presumed" that a child under the age of seven was not capable of committing a crime—a presumption of incapacity.oNot all states in this country

recognize this presumption as conclusive; some term it a rebuttable presumption.


Miscellaneous Rebuttable Presumptions

o People intend the ordinary consequences of their voluntary acts.

o An unlawful intent is presumed from doing an unlawful act.

o Evidence willfully suppressed would be adverse if produced.

o Official duty has been regularly performed.


Knowledge of the Law

o There is a maxim or rule of law providing that everyone is assumed to know the law and that ignorance of the law is no defense for a criminal act.

Scott T. Baxter/Getty Images


Miscellaneous Rebuttable Presumptions

o The ordinary course of business, or routine practice, has been followed.

o A date on a writing is correct.o A man and a woman reporting

themselves as husband and wife are legally married.

o The law has been obeyed.o A ceremonial marriage is valid.o The identity of a person can be

determined by the person’s name.

criminal evidence 6th edition norman m. garland chapter 3 evidence—basic concepts

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