Acc 325 - Chapter 2

Front 1

The american system of justice is...

Back 1

adversarial in nature

Front 2

Meaning of adversarial in nature

Back 2

Both parties involved in the litigation (prosecution and defense) present evidence to a third party (judge or jury) to determine of an individual is guilty of a crime

Front 3

Indictment

Back 3

A formal written accusation charging a person with having committed a crime

Front 4

Under the US Constitution, a person cannot be indicted without first having the indictment...

Back 4

reviewed and issued by a grand jury

Front 5

Primary function of the federal grand jury

Back 5

To hear the gov's evidence against a person (or business) and determine if the evidence is sufficient to bring that person (or entity) to trial

Front 6

Subpoena
(3)

Back 6

1. The primary investigative tool of the grand jury
2. requires a witness to appear before the grand jury
3. can also require a witness to produce records and documents

Front 7

Grant of immunity
(2)

Back 7

1. another grand jury investigative tool
2. immunity is granted to convince or compel a witness to provide testimony or produce docs

Front 8

2 types of immunity grants:

Back 8

1. transactional
2. use

Front 9

Transactional immunity
(2)

Back 9

1. completely protects the witness from prosecution for any criminal offenses about which he or she testifies during the grand jury proceedings
2. rarely used

Front 10

Use immunity

Back 10

1. protects witnesses from the prosecution's use of their testimony against them

Front 11

Immunity can be given either:

Back 11

1. formally
2. informally

Front 12

Formal immunity

Back 12

A federal judge, after reviewing an application from the prosecuting attorney, grants immunity to the witness

Front 13

Informal immunity

Back 13

Offered to grand jury witnesses by the prosecuting attorney via issuance of a letter of immunity

Front 14

Federal grand jury v criminal trial jury

Back 14

1. Federal grand jury: decide if someone should be charged with a crime
2. decide if someone is guilty of a crime

Front 15

Evidence

Back 15

Anything that can make a person believe that a fact or proposition is true or false

Front 16

Evidence is collected to establish...

Back 16

proof

Front 17

In a criminal case, evidence must establish...

Back 17

proof of a crime beyond a reasonable doubt

Front 18

In most civil cases, evidence must be...

Back 18

strong enough to incline a person to believe one side over the other

Front 19

To receive a guilty verdict, the gov must...

Back 19

prove each and every element of a crime beyond a reasonable doubt

Front 20

Reasonable doubt

Back 20

The degree of certainty that you have in accomplishing or transacting the more important concerns of your everyday life

Front 21

Preponderance of evidence
(2)

Back 21

1. the degree of proof required in many civil matters
2. evidence that inclines an impartial mind to see one side rather than the other

Front 22

Clear and convincing evidence
(2)

Back 22

1. not proof beyond a reasonable doubt (as is required in criminal cases)
2. but is stronger than a preponderance of evidence (as req in a civil matter)

Front 23

Probable cause
(2)

Back 23

1. serves as the basis for arrest and search warrants
2. all the facts and circumstances within the knowledge of an investigator about a criminal activity that can be considered reasonable and trustworthy

Front 24

Suspicious situation

Back 24

Police may briefly detain and question a person for investigative purposes if there exists specific "articulable suspicions"

Front 25

To summarize, the __ standards of proof are:

Back 25

1. beyond a reasonable doubt
2. preponderance of evidence
3. clear and convincing evidence
4. probable cause
5. suspicious situation

Front 26

Evidence may be classified according to its:
(2)

Back 26

1. proof results (direct or circumstantial)
2. source (real, documentary, or testimonial)

Front 27

Direct evidence:
(2)

Back 27

1. comes from the witness's personal knowledge as to specific facts that must be proved by the gov
2. will prove the fact without any inference

Front 28

Circumstantial evidence

Back 28

1. evidence based on facts and circumstances from which a jury may infer that a factual matter has been proved.

Front 29

Real evidence

Back 29

1. evidence that is tangible and can be presented to the jury for inspection
ex. knives, bullets, guns

Front 30

Documentary evidence
(3)

Back 30

1. consists of writings and documents
2. primarily circumstantial in nature
3. must be introduced by a witness who can testify to the existence and authenticity of the evidence

Front 31

Testimonial evidence

Back 31

Evidence given by word of mouth

Front 32

Witness

Back 32

A person who can testify as to what he or she knows from having seen, heard, or observed

Front 33

Judicial notice

Back 33

The judge can allow the court to accept certain facts as evidence through a legal process called judicial noticed
ex. formula for water is H2O

Front 34

To be admissible, evidence must be:
(2)

Back 34

1. relevant
2. competent

Front 35

Relevant

Back 35

1. implies a traceable and significant connection

Front 36

Competent
(2)

Back 36

1. The fact offered into evidence is adequately sufficient, reliable, and relevant to the case
2. and is presented by a qualified and capable witness

Front 37

Character evidence
(2)

Back 37

1. testimony or exhibits that purport to establish a "trait of character" or propensity to behave in a particular way
2. rarely admissible

Front 38

Exceptions for using character evidence in criminal cases:
(9)

Back 38

1. Prove motive
2. Ability or means to commit the crime
3. Opportunity
4. Threats by accused
5. Physical Evidence at scene linked to accused
6. Accused conduct or comments during arrest
7. Attempt to conceal identity
8. Attempt to destroy evidence
9. Valid confession

Front 39

Privileged communication
(3)

Back 39

1. Based on confidentiality of certain communications
2. Covers communications of a protected relationship
3. Can not divulge information without consent of the other party

Front 40

Privileged communications recognized by federal gov
(3)

Back 40

1. Husband - Wife
2. Attorney – Client
3. Clergy - Parishioner

Front 41

Privileged com partially recognized by federal gov

Back 41

(in civil cases only)
Psychotherapist/Patient

Front 42

Privileged com NOT recognized by federal gov
(3)

Back 42

1. Accountant – Client
2. Doctor - Patient
3. Law Enforcement Officer - Informant

Front 43

Hearsay

Back 43

1. Testimony which does not come from personal knowledge of declarant, but from the repetition of what a person has heard from others
2. INadmissible in court

Front 44

Exceptions to the hearsay rule:
(13)

Back 44

1. Valid confessions
2. Prior statements
3. Statements against interest
4. Res Gestae
5. Dying Declaration
6. Official records rule
7. Shop book rule
8. Expert testimony
9. When the truth of the statement isn’t an issue
10. Former Testimony
11. Recorded Recollections
12. Absence of an entry in Business Records
13. Statements to Medical Personnel

Front 45

The truth of the stmt is not at issue

Back 45

If the statement is not offered to prove the truth of the matter contained in the statement, it is not hearsay

Front 46

Admissions

Back 46

Anything spoken or written by a party to a lawsuit can be entered into the record, provided the statement can be corroborated and is relevant

Front 47

Statement against interest

Back 47

A special form of admission in which a prior statement is at odds with the declarant's current claim

Front 48

Business and government records

Back 48

Technically, business and gov records are hearsay. They are admissible if they are provided with a legal foundation

Front 49

PResent sense impressions

Back 49

1. statements made during or immediately after a significant event are reliable
2. are admissible

Front 50

Res gestae rule
(3)

Back 50

1. allows only those statements which indicate "excited utterances" - things said as a part of a startling or otherwise tense situation
3. statements are made spontaneously by a defendent during great emotional strain

Front 51

Then existing mental, emotional, or physical condition

Back 51

Statements which establish the declarant's state of mind and/or body are admissible

Front 52

Statements to medical personnel

Back 52

Anything first communicated during a medical examination is admissible as a hearsay exception

Front 53

Printed matter, learned treatises, refresher writings

Back 53

Written materials that add to the court's knowledge of an issue are excepted from the hearsay rule

Front 54

Chain of custody

Back 54

Evidence obtained must be marked, identified, inventoried and preserved to maintain its’ original condition until introduced in trial

Front 55

Best evidence rule
(2)

Back 55

1. applies only to documentary evidence
2. states that the best proof of the contents of a document is the document itself

Front 56

An authenticated copy may be substituted for the original if :
(2)

Back 56

1. The original has been destroyed
2. The original is in the possession of a third party who is not subject to legal process by subpoena or search warrant

Front 57

Secondary evidence
(2)

Back 57

1. all evidence falling short of the standard for best evidence is secondary evidence
2. before secondary evidence can be admitted, there must be satisfactory evidence showing the present or former existence of an original doc (has to have been destroyed, lost, stolen, or otherwise unavailable)

Front 58

Majority rule

Back 58

In some jurisdictions, testimony will not be allowed to prove the contents of a document if there exists secondary evidence to prove its contents

Front 59

Functions of grand jury:
(2)

Back 59

1. review of evidence
2. approval of indictments

Front 60

Info about grand jury
(8)

Back 60

1. 16 to 23
2. registered voters of a judicial district
3. must be 16 members present to conduct hearings
4. There is NO judge in grand jury hearings
5. There is NO defendant present
6. Defendants attorney is NOT permitted
7. Only the grand jurors, the prosecutor(s), a court reporter and one witness are present during a hearing
8. Only the grand jurors are present during deliberations on an indictment

Front 61

What the grand jury does:
(7)

Back 61

1. “Sit” for 18 months (can be extended to 24)
2. They meet in secret (ie. no public allowed)
3. listen to testimony and review evidence
4. have the role of fact finder
5. vote on indictments
6. Testimony commonly known as hearsay is permitted in the Grand Jury
7. Members elect a Foreperson and an Alternate

Front 62

Grand jury tools
(2)

Back 62

1. subpoena
2. immunity

Front 63

Stipulations for indictments
(5)

Back 63

1. must have 12 “Yes” votes for an indictment to become a “TRUE BILL” regardless of how many grand jurors are present
2. In order to vote “Yes” a juror must find “Probable Cause” to believe the defendant committed the crime charged
3. Less than 12 “Yes” votes is called a “NO BILL”
4. Grand juror need not be present for all testimony in order to vote on an indictment
5. Foreperson signs “True Bill” even if he or she did not vote yes on it