Chapter Ten Courtroom Evidence Chapter Ten Courtroom Evidence “Give me your evidence,” said the King “and don’t be nervous, or I’ll have you executed on

Chapter TenCourtroom Evidence

Chapter TenCourtroom Evidence

““Give me your evidence,” said the King “and don’t be nervous, or I’ll have you Give me your evidence,” said the King “and don’t be nervous, or I’ll have you executed on the spot.”executed on the spot.”

— — Lewis Carroll, Alice’s Adventures in Wonderland, 1865Lewis Carroll, Alice’s Adventures in Wonderland, 1865

Procedures in the Justice System, Ninth EditionBy Cliff Roberson, Harvey Wallace, and Gilbert Stuckey

© 2010 Pearson Higher Education, Inc.Pearson Prentice Hall - Upper Saddle River, NJ 07458

• Character Evidence• Daubert Test• Declarant• Hearsay• Impeachment• Judicial Notice• Lay Witness• Limited Admissibility

Key terms to understand for this chapter…

KEY WORDS

• Preliminary Questions• Rape Shield Laws• Relevant Evidence



OBJECTIVES

After completing this chapter, you should be able to…

• Explain what constitutes hearsay testimony.• Describe the purposes of the Rules of Evidence.• Identify and discuss the various rulings on evidence.• Understand the concept of judicial notice.• Demonstrate how documents are introduced into

evidence.• Explain what constitutes relevant evidence.



OBJECTIVES

After completing this chapter, you should be able to…

• Discuss the concept of fairness as it relates to the admissibility of evidence.

• Explain the difference between lay and expert witnesses.

(cont.)



INTRODUCTION

• Evidence law was originally almost entirely decisional law, and now is codified in statutes and court rules.

• Most state rules of evidence are based on the Federal Rules, with only slight differences among the states.

• Evidentiary rules should attempt to secure fairness in administration, elimination of unjustifiable expense & delay, and promotion of growth & development of the law of evidence.– to the end that truth may be ascertained & proceedings

justly determined



INTRODUCTION

• The two basic themes found in the Federal Rules are:– the Rules favor admissibility of evidence

– the trial judge has considerable discretion as to admissibility

• A trial judge has discretion to fashion procedures todeal with situations not specifically covered in the rules.

• In interpreting the Rules, it is important for judges to differentiate when Congress or legislatures havespoken and finally determined an issue/– and when they have left room for judicial interpretation

(cont.)



INTRODUCTION

• The Third Circuit Court of Appeals in US v. Pelullo,– while the Rules “…are to be liberally construed in favor

of admissibility, this does not mean that we may ignore requirements of specific provisions merely because we view the proffered evidence as trustworthy.”

• Federal Rule 102 establishes a principle of flexibility in the application of the Federal Rules of Evidence.

• The US Supreme Court has stated judicial flexibility has no place when the “plain meaning” of a Federal Rule of Evidence mandates a certain result.

(cont.)



• Statement - an oral or written assertion or nonverbal conduct of a person if intended as an assertion.

• Declarant - a person who makes a statement.• 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.

EVIDENTIARY DEFINITIONS



• A statement is not hearsay if the declarant testifies at trial or hearing, is subject to cross-examination concerning the statement, and the statement is: – inconsistent with the declarant’s testimony and was given

under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition

– consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive

– one of identification of a person made after perceiving the person




• A statement is not hearsay if Admission by a party-opponent, offered against a party, and is:– a party’s statement in an individual or representative capacity

– a statement of which the party has manifested an adoption or belief in its truth

– a statement by a person authorized by the party to make a statement concerning the subject

– a statement by party’s agent, concerning a matter within scope of agency, made during existence of the relationship

– a statement by a coconspirator of a party during the course and in furtherance of the conspiracy




• Hearsay is inadmissible unless an exception is applicable. A few exceptions include:

Hearsay RuleGeneral Rule on Hearsay

• Affidavits to show grounds for issuing warrants or determine issues of fact in connection with motions.

• A statement describing an event or condition made while the declarant was perceiving the it.– or immediately thereafter

• 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.





• A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, not including a statement of memory or belief

• Statements made for purposes of medical diagnosis or treatment and describing the medical history.

• Memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify.





• Records of vital statistics.• Records of religious organizations. • Family records. • Statements in a document in existence twenty years or

more the authenticity of which is established.• Judgment of previous conviction.



• The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:


• Former testimony - given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law.

• Statement under belief of impending death - made by a declarant while believing the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.



• The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:


• Statement against interest - so far contrary to the declarant’s pecuniary/proprietary interest a reasonable person in the declarant’s position would not have made the statement unless he/she believed it to be true.

• A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement



• Rulings on evidence cannot be assigned as error unless– a substantial right is affected

– the nature of the error was called to the attention of the judge

• The objection and the offer of proof are the techniques for accomplishing these objectives. – an exception to this requirement is the plain error rule

• In jury cases, evidentiary proceedings are conductedto practicable extent outside the presence of the jury.– to prevent inadmissible evidence from being suggested

Rulings on Evidence



• Preliminary questions concerning qualification of a witness, existence of privilege, or admissibility of evidence shall be determined by the court (trial judge).– “What is your name?” is considered a preliminary question

• Hearings on preliminary matters shall be outside of the hearing of the jury when the interests of justice require or an accused is a witness and so requests.

• The accused does not, by testifying upon a preliminary matter, become subject to cross-examination on other issues in the case.

Rulings on EvidencePreliminary Questions



• When evidence, admissibleas to one defendant or onepurpose, but not another, is admitted, the court, on request, will restrict scopeof the evidence, instructing the jury accordingly.

• Federal Rule 195 allows for limited admissibility for a specified purpose but provides protection by limiting instruction to the nonoffering party.– who will be prejudiced by the evidence

Rulings on EvidenceLimited Admissability

A manila evidence envelope printed with a form forevidence collection information from Sirchie FingerPrint Laboratories.



• Nothing prohibits a trial judge from providing a limiting instruction sua sponte.

• There is often good reason for a trial court to avoid giving an instruction that is not requested. – a party otherwise entitled to an instruction may have made

a strategic decision that he/she is better off without one

– that evidence is admissible for a limited purpose does not require that the evidence be admitted

• A trial judge, in determining prejudice to be suffered from offered evidence, must take into account whether prejudice can be ameliorated by a limiting instruction.

Rulings on EvidenceBurden on Parties to Object



• When a writing or recorded statement or part thereof is introduced, an adverse party may require introduction of any other part which ought in fairness to be considered contemporaneously with it.

• An expression of the Rule of Completeness, based on two considerations: – misleading impressions created, taking matters out of context – inadequacy of repair work when delayed to later in the trial

• The rule is limited to separate writings and recordings as well as to excised portions.– and does not apply to conversations

Rulings on EvidenceAdmission of Part of a Document



• Where a party introduces a portion of an oral statement, the adversary is entitled to have omitted portions introduced at the same time.– to correct any misimpression the proffered portion may create

Rulings on EvidenceOral Statements

A police officer peers through a microscopewhile studying ballistic evidence in a lab inSanta Ana, California.

A lawyer showing a piece of evidence toa man on the witness stand during a trial.



• The fairness rule requires admission of completing evidence only when it ought “in fairness” to be considered with the admitted statement.– the rule does not mean that if any part of a statement is

admitted, then the entire statement is to be admitted.

– the rule does not require “portions of a writing which are neither explanatory nor relevant to the introduced portions be admitted”

• It can be difficult to determine whether fairness mandates admission of allegedly completing evidence.– a good example arose in US v. Haddad

Rulings on EvidenceFairness



• Judicial notice is used when a relevant fact is so well known to require it proved would be a waste of time. – a judge may take judicial notice that July 4th is a holiday

• A judicially noticed fact must be one not subject to reasonable dispute in that it is – generally known within the territorial jurisdiction of the

court

– capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

• Judicial notice may be taken at any stage of the proceeding.

Judicial Notice



• Relevant evidence has some tendency, as a matter of logic & human experience, to make the proposition for which it is advanced more likely than the proposition would appear to be in the absence of that evidence. – to identify logically irrelevant evidence, ask, “Does the

evidence assist in proving the fact one party is trying to prove?”

• Problems of relevancy call for an answer as to whether an item of evidence possesses sufficient probative value to justify receiving it in evidence.

Relevant Evidence



• Under conditional relevancy, probative value depends upon satisfying the basic requirement of relevancy.– also upon the existence of some matter of fact

• Evidence may be excluded if the probative value is outweighed by danger of unfair prejudice, confusion of issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence.

• Surprise is generally not a ground for exclusion.– unfair surprise may be, if coupled with the danger of

prejudice and confusion of issues

Relevant EvidenceExclusion of Relevant Evidence…



• Evidence of a person’s character or a trait of character is not admissible for proving action in conformity therewith on a particular occasion, except:– evidence of a pertinent trait of character offered by an

accused, or by the prosecution to rebut the same

– evidence of a pertinent trait of the alleged victim offered by an accused, or by the prosecution to rebut the same

– evidence of the character of a witness may be admissible to impeach the witnesses’ testimony

• Evidence of other crimes/wrongs/acts is not admissible in order to show action in conformity therewith.

Relevant EvidenceCharacter Evidence Not Admissable…



• Character questions arise in two different ways: – character may itself be an element of a crime, claim, or

defense, commonly referred to as character in issue

– character evidence is susceptible of being used to suggest an inference the person acted consistently with his character, and is often described as circumstantial.

• In most jurisdictions, circumstantial use of character is rejected, though there are exceptions.

• Character evidence is of slight probative value and may be very prejudicial. – it tends to distract the jury

Relevant EvidenceCharacter Evidence Not Admissable…



• Federal Rule 412 and similar state rules disallow the following evidence in any civil or criminal proceeding involving alleged sexual misconduct of a victim:– evidence to prove a victim engaged in other sexual behavior– evidence offered to prove a victim’s sexual predisposition

• Some Rule 412(b) Exceptions:– evidence of specific instances of sexual behavior offered to

prove that a person other than the accused was the source of semen, injury, or other physical evidence

– evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused

– exclusion violating the constitutional rights of the defendant

Rape Shield Laws



• A party intending to offer evidence under Federal Rule 412 (b) must:– file a written motion specifically describing the evidence and

stating the purpose for which it is offered unless the court

– serve the motion on all parties and notify the alleged victim or alleged victim’s guardian or representative

• Before admitting evidence under Rule 412, the court must conduct a hearing in camera and afford the victim and the parties a right to attend and be heard.

• The motion, related papers, and record of the hearing must remain under seal unless ordered otherwise.

Rape Shield LawsProcedure to Determine Admissability



• In a case in which the defendant is accused of sexual assault, evidence of the commission of other offense of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.

• If the prosecution intends to offerevidence under this rule, it mustdisclose the evidence to thedefendant.

Rape Shield LawsEvidence of Similar Crimes…

A brown paper bag containing evidence, sealed and marked“Do Not Open.” The bag contained a stolen purse confiscatedby the Kansas City, Missouri, Police Department. (Source: Mikael Karlsson/Arresting Images.)



Every person is competent to be a witness except as otherwise provided in these rules. —Federal Rule 601

• At common law, only certain individuals were qualified to testify as witnesses. – disqualifications included religious belief, conviction of

crime, and connection with the litigation as a party orinterested person or spouse of a party or interested person

• American jurisdictions generally have ceased to recognize these grounds.

• No mental or moral qualifications for testifying as a witness are specified.

Witnesses



• Since a judge has authority in extreme cases to exclude a witness on grounds of incompetency, question arises if the witness’ hearsay statements should be excluded.– even if they would otherwise fit a hearsay exception

• Most courts have held that a person’s incompetency to testify as a witness has no bearing on the admissibility of his/her hearsay statement.

WitnessesCompetency of Hearsay Declarants



• A witness may not testify to a matter unless evidenceis introduced sufficient to support a finding that the witness has personal knowledge of the matter.

• Evidence to prove personal knowledge may, but need not, consist of the witness’s own testimony.– subject to provisions of Federal Rule 703, relating

to opinion testimony by expert witnesses

• The rule requiring a witness to have actually observed, the fact is a “most pervasive manifestation” of common law insistence on “the most reliable sources of information.”

WitnessesLack of Personal Knowledge



• A witness need not be absolutely certain of the event related in order to satisfy the personal knowledge requirement. – enough that a reasonable juror could find that the witness

perceived the event

• Perfect knowledge is not required; as a problem in perception generally goes to weight, not admissibility– that a witness cannot recall specific dates does not require

exclusion, since inability to recall specific dates does not demonstrate an absence of personal knowledge

WitnessesLack of Personal Knowledge



• A witness is required to declare that he/she will testify truthfully, by oath/affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so. – along with cross-examination, requirement of an oath is

designed to ensure accurate, honest testimony

• Federal Rule 603 states a witness need not swear an oath, but merely affirm he/she will testify truthfully.– by permitting affirmation as well as oath, difficulties faced

members of some religious groups should be alleviated

WitnessesOath or Affirmation



• Impeachment is a legal term referring to the process of attacking the credibility of a witness.

• At common law, a party who called a witness could not impeach that witness unless the court declared the witness to be a “hostile witness.” – no longer the rule in most jurisdictions

• The Federal Rules recognize that a party does not necessarily vouch for a witness.– in fact, a party may have no choice but to call an adverse

witness in order to prove a case

WitnessesImpeachment of a Witness



• Credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: – evidence may refer only to character for truthfulness or

untruthfulness

– evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked

• Specific instances, may in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness.

WitnessesCharacter and Conduct of a Witness



• Evidence a witness has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year

• Evidence of conviction is not admissible if more than ten years has elapsed since the conviction or release of the witness from confinement.

• Evidence of conviction is not admissible if the conviction has been subject to pardon, annulment, certificate of rehabilitation, or equivalent procedure.

• Juvenile adjudication is generally not admissible.

WitnessesImpeachment by Evidence of Conviction



• The court exercises reasonable control over mode and order of interrogating witnesses & presenting evidence.– to make the interrogation/presentation effective for the

ascertainment of the truth

– to avoid needless consumption of time

– to protect witnesses from harassment/undue embarrassment

• Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. – a court may permit inquiry into additional matters

WitnessesMode/Order of Interrogation/Presentation



• In examining a witness concerning a prior statement written or not, the statement need not be shown nor its contents disclosed to the witness at that time.– on request shall be shown or disclosed to opposing counsel

• Evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same– and the opposite party is afforded an opportunity to

interrogate the witness thereon

• A traditional way to impeach a witness is to introduce evidence of a prior inconsistent statement.

WitnessesPrior Statements of Witnesses



• Basic common-law foundation consists of affording a witness opportunity for admitting or denying a prior inconsistent statement was made– and of explaining the circumstances of the statement

• The traditional method of confronting a witness with inconsistent statement prior to its introduction is the preferred method of proceeding.

• Where the proponent of testimony fails to do so and the witness becomes unavailable, there is risk the court will not allow the admission of the prior statement.

WitnessesOpportunity for Witness to Explain/Deny



• At request, the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses.– and it may make the order of its own motion

• Sequestration of prospective witnesses is a common method of discouraging or preventing collusion.

• In criminal cases, the Sixth & Fourteenth Amendments entitle a defendant to be present, though the defendant may waive that right in several ways.

• It is held the police officer in charge of the investigation is within the “officer/employee” exception of Rule 615.

WitnessesExclusion: Invoking the Rule



• If a witness is not testifying as an expert, the witness’s testimony in form of opinions or inferences is limited.– to those rationally based on the perception of the witness

– those helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue

– those not based on specialized knowledge

• Lay witnesses find it difficult to express themselves in language which is not that of an opinion or conclusion. – courts have made concessions in certain recurring situations

WitnessesOpinion Testimony by Nonexpert Witness



• In State v. Brown, the trial court declared that the distinction between lay & expert witness testimony is that…– lay testimony “results from a process of reasoning familiar

in everyday life,”

– expert testimony “results from a process of reasoning which can be mastered only by specialists in the field.”

WitnessesOpinion Testimony by Nonexpert Witness



• If scientific, technical, or other specialized knowledge will assist the jury to understand evidence or determine a fact in issue, a witness qualified as an expert by may testify thereto in the form of an opinion.

• Fields of knowledge which may be drawn upon are not limited to the scientific and technical but extend to all specialized knowledge.

• The expert is viewed not in a narrow sense, but as a person qualified by knowledge, skill, experience, training or education.

WitnessesTestimony by Experts



• The Daubert test set forth a nonexclusive checklist for trial courts to use in assessing reliability of scientific expert testimony.– whether the expert’s technique/theory can be/has been tested

– whether the technique/theory has been subject to peer revie

– the known or potential rate of error of the technique/theory

– the existence and maintenance of standards and controls

– whether the technique or theory has been generally accepted in the scientific community

• Courts before & after Daubert have found other factors relevant in determining expert testimony reliable.

WitnessesTestimony by Experts - Daubert Test



• A review of case law after Daubert shows rejection of expert testimony is the exception rather than the rule.

• The court in Daubert stated:– “Vigorous cross-examination, presentation of contrary

evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.

• A ruling that an expert’s testimony is reliable doesnot necessarily mean contradictory expert testimonyis unreliable.

WitnessesTestimony by Experts - Daubert Test



• Facts/data in a particular case on which an expert bases an opinion/inference may be those perceived by or made known to the expert at or before the hearing.

• If of a type reasonably relied upon by experts forming opinions or inferences upon the subject, facts/data need not be admissible for opinion/inference to be admitted.

• Facts or data upon which expert opinions are based may be derived from:– firsthand observation of the witness, or presentation at trial – presentation to the expert outside of court and other than by

his/her own perception

WitnessesBases of Opinion Testimony by Experts



• Rule 1002 is the best evidence rule that requires the production of an original in order to prove the contents of a writing, recording, or photograph unless an exception is provided in another rule. – rationale is that accuracy is promoted by production of the

original as the process of copying creates a risk of error

• An exception is police testimony as to a confession. – officers who heard a defendant confess may testify to what

they heard even if there is a recording of the confessionand a transcript of that recording

DocumentsRequirement of Original



• The original document is not required, and other evidence of contents of a writing, recording, or photograph is admissible, if…– the original has been lost or destroyed

– the original is not obtainable

– the original is in the possession of the opponent

– the writing, recording, or photograph is not closely related to a controlling issue

DocumentsRequirement of Original



• Contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy.– certified as correct, or testified to be correct by a witness

who has compared it with the original

• Contents of voluminous writings, recordings, or photographs not conveniently be examined in court may be presented in the form of a chart, summary, or calculation. – originals, or duplicates, shall be made available

DocumentsPublic Records/Summaries



• One of the general requirements of introducing real evidence, including writings, at trial is that the evidence must be authenticated. – someone must lay sufficient foundation so the jury is able

to determine the evidence is what it is supposed to be

• When a witness testifies to statements made by someone else, the witness must be able to identify the person from whom the statements emanated.

• Requirements for authenticating evidence are not burdensome, but they often require that foundational evidence be presented.

DocumentsAuthentication or Identification



• In criminal cases, question of authenticity arises when something is seized from the defendant and introduced at trial, and the defendant disputes that it is his/hers or argues that the thing has been altered in some way. – a way to authenticate the evidence in these circumstances

is to establish a chain of custody

• Courts have been permissive in determining whether the government has established sufficient chain of custody. – gaps in the chain of custody go to weight and not

admissibility

DocumentsChain of Custody



• The most important chain is the one from the original seizure of the evidence to analysis of the substance. – given the fungibility of drugs, it is essential to make a

connection between the substance seized from thedefendant and the substance actually tested

• Any substantial gap in this chain of custody or any indication of alteration should be treated as fatal

• Testimony of a witness with personal knowledge of a piece of evidence is a classic way of authenticating. – an eyewitness to the signing of a document may authenticate

the document




• Handwriting, fingerprints, blood, hair, clothing fibers, and numerous other things can be authenticated by comparison with authenticated specimens.

• Sometimes the characteristics of an item will themselves serve to authenticate the item. – a letter may be authenticated by its content and circumstances

indicating that it was a reply to a duly authenticated letter

• One who is familiar with the voice of another may authenticate a conversation or identify the speaker on a tape or other recording. – if offered for its truth, hearsay problems will exist




• Evidence is a study of the regulations involving the process of proving facts.

• Two themes of the Federal Rules are that (1) the rules favor admissibility of evidence and (2) the trial judge has considerable discretion concerning the admissibility of evidence.

• Hearsay is 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.

Important topics for this chapter…

SUMMARY



• Hearsay is inadmissible unless an exception is applicable.

• Rulings on evidence cannot be assigned as error on appeal unless a substantial right is affected and the nature of the error was called to the attention of the judge at the time the evidence was offered.

• When evidence is admitted for a limited purpose, the judge should instruct the jury as to the proper scope of the evidence.


SUMMARY(cont.)



• Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence.

• Admissible relevant evidence may be excluded on the grounds of prejudice, confusion, or waste of time.

• Generally, character evidence is not admissible to prove conduct.


SUMMARY(cont.)



• There are no mental or moral qualifications for testifying as a witness under the Federal Rules.

• A witness should have the opportunity to deny or explain a prior inconsistent statement.

• Expert witnesses include skilled persons.


SUMMARY(cont.)

Chapter EndChapter End