Evidence: Chapter 4

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Real Evidence (Type)

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any tangible item that can be perceived with the five senses; example is demonstrative evidence; can be direct or circumstantial

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Demonstrative Evidence

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type of Real Evidence; intended to "demonstrate" a certain point; drawings and diagrams, displays and demonstrations, computer simulations, etc.

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Testimonial Evidence (Type)

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refers to what someone says; given by a competent witness who is testifying in court and under oath; affidavits and depositions taken out of court; if statement not given under oath, it may not be admissible as evidence; there are exceptions, such as some hearsay statements; can be direct or circumstantial

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Direct Evidence (Variety)

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proves a fact without the need for the juror to infer or presume anything from it; evidence that speaks for itself-directly proves a certain fact

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Circumstantial Evidence (Variety)

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indirectly proves a fact; does not speak directly to the defendant's involvement in a crime; it shows involvement in a roundabout way; three types include modus operandi, motive, and threats

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Modus Operandi**********

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type of Circumstatial Evidence; intent or motive; "method of operation;" not enough for prosecution to show that the defendant was convicted of similar crimes in the past, but rather it must show that the method of operation was the same; rule- evidence of prior crimes is usually not admissable; exception- prosecutor will need to convince the judge before circumstantial evidence of modus operandi will be allowed

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Consciousness of Guilt

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type of circumstantial evidence; if a person flees in an effort to avoid punishment; flight from the police after being released on bail and at other stages of the criminal process; if prosecution can show that the defendant took steps to conceal evidence; if it can be shown that the defendant consciously destroyed evidence

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Evidence Involving the Character of the Suspect or Victim *******

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type of circumstantial evidence; credibility refers to whether a witness should be believed- synonymous with character; circumstantial evidence-inference be drawn; only when defendant plays the character card can the prosecution attack his character

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Judicial Notice

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procedure courts use to determine the truth of falsity of a matter without having to follow the normal rules of evidence; without it courts would be bound to blank pad rule; method for saving time; allows preexisting or common knowledge (knowledge almost everyone has); always taken by a judge in a case; many varieties

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Blank Pad Rule ************

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part of Judicial Notice; provides that the court and jury in a criminal case know nothing about the dispute between the two parties involved; the only way the court and jury come to know about the dispute is through evidence properly introduced; can't infer anything without evidence

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Tacit Judicial Notice

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variety of Judicial Notice; occurs when the judge does not make any statements to the effect that judicial notice is being given with regard to a certain fact; unspoken judicial notice; common

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Judicial Notice of Law

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variety of Judicial Notice; occurs when courts accept what is written in statutes, constitutional provisions, and court cases; must be taken in the area that law covers

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Uniform Judicial Notice of Foreign Law Act

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variety of Judicial Notice; every court in a specific state give notice of the common law or statutes of every other jurisdiction in the U.S.; many states adopt it but it is hardly taken

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Judicial Notice of Legislative Facts *********

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variety of Judicial Notice; legislative facts are the facts that courts rely on when interpreting statutes, constitutional provisions, and the like

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Judicial Notice of Adjudicative Facts *********

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variety of Judicial Notice; matters of general knowledge not otherwise connected to statutes, constitutions, administrative rules, or other sources of law; according to Rule 201 of the Federal Rules of Evidence, a court can only take this notice if it is indisputable, common knowledge, and an ascertainable fact

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Indisputable Component

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type of Judicial Notice of Adjudicative Facts; an indisputable fact is one that speaks for itself and requires virtually no interpretation or debate as to its truthfulness

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Common Knowledge Component

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type of Judicial Notice of Adjudicative Facts; it is generally known by informed individuals within the jurisdiction of the trial court (district, county, state within which the court sits)

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Ascertainable Fact Component

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type of Judicial Notice of Adjudicative Facts; determined by looking it up in some source (dictionary), the accuracy of which cannot be easily disputed; a fact cannot be considered ascertainable if it is exceedingly difficult to locate a source to back it up; a source is considered accurate if its accuracy cannot be reasonably questioned

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Procedure for Judicial Notice *******

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both parties can formally request that the court take a judicial notice of some fact; two ways- the party seeking judicial notice of some fact must formally request notice or the party must also provide the source of the fact and prove that the source is accurate;two methods for contesting judicial notice- one or more parties can challenge the "propriety" of taking notice by showing that the fact is not generally known or one or more parties can challenge the "tenor" of the fact noticed; tenor refers not the whether the fact is generally known but rather to whether the fact, as the court has interpreted it, is wrong; parties at trial courts can only take judicial notice but appellate courts can take notice of facts if lower courts did not do so and they can decide if a lower court's judicial notice was valid

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Benefits of Judicial Notice *******

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bars conntrary evidence; prohibits the opposing party (if one party contests notice) from introducing evidence to contradict the fact

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Criticisms of Judicial Notice *****

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sixth amendment guarantees right to a jury trial, but when courts take judicial notice of facts, they essentially circumvent this provision; when a court takes notice of a certain fact, it threatens the right of confrontation

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Presumption*****

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person draws a conclusion from one or more facts presented during a case; procedural device which not only permits an inference of the "presumed" fact, but also shifts to the opposing party the burden of producing evidence to disprove the presumed fact; legal practice whereby a court accepts the existence of one fact from the existence of another fact that has already been proven; a substitute for evidence; logical decision based on human knowledge, a decision that connects two or more important facts together in some fashion; typically mandatory- jury is required to draw some conclusion; subject to restrictions

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Inferences****

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not mandatory; logical deduction or conclusion from an established fact; because it is up to each jury member to draw inferences, the rules of evidence make it difficult to restrict them

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Conclusive Presumption

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type of Presumption; require that all parties in the case agree with the decision; cannot be challenged by either the prosecution or the defense; irrebuttable

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Rebuttable Presumption *****

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type of Presumption; the party against whom the presumption operates may introduce evidence to disprove the presumption; more common than conclusive presumptions

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Presumption of Law

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type of Presumption; law requires that an inference or deduction be drawn; juries must assume the presumption is factual until the evidence is introduced to the contrary

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Presumption of Innocence

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type of Presumption of Law; criminal justice system requires that accused persons be presumed innocent until proven guilty

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Presumptions of Fact

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type of Presumption; not required by law; cannot be made at the outset of a criminal case, like presumption of law can

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Effect of Presumptions

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cause the jury to draw some inference (presumption of fact); when a rebuttable presumption is offerred by the prosecution, the burden of proof shifts to the defense; sixth amendment violation occurs when a conclusive presumption is required by law (Leary v. U.S., 1969)

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The Need for Presumptions and Inferences

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presumptions speed up proceedings and are necessary for the normal functioning of governments and public organizations; without such a presumption, the accuracy of records at all levels of government and in all public organizations could easily be disputed, causing unneccessary delay in daily functioning

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The Presumption of Knowledge and the Law

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irrebuttable

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The Presumption of the Regularity of Official Acts

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Rebuttable; it is presumed that public officials going about their official duties do, in good faith, what is required of them; this presumption can be overcome by evidence of tampering supplied by the defense

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The Presumption that Young Children are not Capable of Committing Crime

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Rebuttable; some states used to make it a conclusive presumption that children under a certain age are not capable of committing crime

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The Presumption that People Intend the Consequences of their Voluntary Actions

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Rebuttable; Supreme Court held that this presumption violates the 14th Amendment's due process clause; the Supreme Court concluded that the 14th Amendment was violated with a jury instruction "that the law presumes that a person intends the ordinary consequences of his voluntary acts;" thus it is unconstitutional to require (or even allow) juries to presume that defendants intend the results of their voluntary actions; violation of procedural and subjective due process; state must prove both elements of criminal act- actus rea (criminal act itself) and mens rea (intent)- the burden falls on the prosecution to prove that the defendant intended to commit the crime-it is a violation of due process to require the defense to show that the defendant did not intend to commit the crime for which he is charged

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The Presumption of Death Following a Lengthy Unexplained Absence

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rebuttable; permit a presumption that someone is deat after he has been missing for years; does not apply to fugitives on the run

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Constitutional Requirements for Presumptions

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due process clause of the fifth and 14th Amendments limit the legislatively mandated presumptions; for the presumption to be considered constitutional, a raitonal connection must exist between some fact and a presumption that follows from it; a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience; but where the inference is so strained as not to have reasonable relation to the circumstances of life as we know them, it is not competent for the legislature to create it as a rule governing the procedure of courts; the presumption needs to logically follow some specific fact (if it is stretched for the jury to presume something, this is unconstitutional), legislatively mandated presumptions should not shift the burden of proof to the defense in any way whatsoever (the only time defense should be required to offer proof against some presumption is if that presumption is specifically rebuttable)

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Stipulations

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agreements between opposing attorneys about some important fact; can be viewed as "concessions" made by either side to a case; usually made with regard to facts that have little bearing on the outcome of the trial; agreement is reached in the interest of expediency and efficiency; there are limitations

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Limitations of Stipulations

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defense should not stipulate to the prosecution on all points (to do so would be to put on an inadequate defense); if either side stipulates in error, the court is not bound to accept the stipulation; stipulations can be withdrawn if the need arises