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59 Cards in this Set

  • Front
  • Back
Nature and Context of Legal Investigation
The process of gathering additional facts and verifying presently known facts in order to advise a client on how to solve or avoid a legal problem.
Social Networking
If you have to use a log in and password then you may have committed an ethical violation.
Ex. Facebook, Linked In, Classmates
Public Records
If the information is public record, then it is okay to search them.
Illegally obtained information
Information that is obtained illegally, then it is not allowed to be used in court.
Inverstigation Techniques are:
Individualized- the style and/or order that you do the investigation does not really matter.
Hustle:
you have to move quickly to gather the information. Go to the site or scene of the incident. Evidence may be destroyed or gone if you don't move fast.
Flexibility:
Sometimes you might not go exactly in the order of your list. Think outside of the box.
Imagination:
Everything is important at the time of the investigation. you do not disregard anything in the beginning.
6 ways to focus and investigation:
Instruction of the supervisor
Checklists
Legal Analysis
Common Sense
Flexibility
Proof and evidence
Evidence
anything the could be offered to prove or disprove an alleged fact.
Proof
Enough evidence to establish the truth or falsity of a fact.
Illegal evidence
Any evidence obtained illegally is thrown out.
Exclusionary Rule
"fruit of the poisonous fruit" describes the evidence obtained illegally.
Gaining Access to records:
Already in the possession of a client. You do not need a release for these documents.If they are willing to give you something in their possession you don't need a release.
Public Records:
Anything from a government agency or private organization.

They may time frame to get the documents and a fee.
Records held by government or other agency that are available only to the subject of the record:
You must have a release to get these records.
Government agency or private organization and claim to be confidential except to in-house staff.
Ex: military records, psychiatric records,. These records are closed and you might not have access to them.
Investigation Outline:
Additional Questions since initial interview
Documents Needed:
Witness- to question
Step-Next/future - To-Do list and timeline to do these things.
Disproof
As important and proof.
Tangible evidence
DNA
X-Rays
Video tapes
Medical records
Trial Exhibits:
become tangible evidence.
Recreated evidence:
becomes tangible evidence.
Demonstrative Evidence
is usually created. Example-videos that are made from the facts of the case.
Day in the life video
Sometimes they make "Day in the Life" video to show life after an accident.
Anything
Tangible evidence Testimonial
(witnesses)
Lay Expert
(first hand Witness)
Evidence
Lay Witness
They have first hand knowledge. You can only testify to what you actually witnessed. Can only tell what you know.
Expert Witnesses: Qualified by:
Education
Training
or
Experience
you present their credentials and judge decides if they are an expert. then they can give opinions.
Opinion:
Expert witnesses can give their opinion about how something happened.

An inference from a fact.
Expert Witnesses:
Both sides have expert witnesses and it s up to the jury to decide which expert to believe.
Credibility:
can be created as well as take away if they tell untrue statements.

Credibility can be attacked.
Competency
Can not be attacked.
The judge determines competency of the witness and once they are considered competent by the judge, then they are.
Witnesses- Pay?????
Witnesses are not paid but they are compensated for their time, experience and travel expenses.
Competence of witness:
determined by law:
1.Communication: ability to communicate.
2. Facts-must have first hand knowledge.
3. Truth- legal and moral obligation to tell the truth.
Children as witnesses-to determine if they can testify-
1-the child has knowledge that can not be obtains any other way.
2-if a child is required to testify: they may be allowed to testify in another room away from the court room.
Qualified Witness:
Once a person has been qualified to be an expert the judge is the only one that can say they are no longer considered an expert- if they lied about their credentials.
Competency:
Once a judge says a person is competent-they are until there is a reason to petition that they are no longer competent.
Testifying Expert:
must shaw their information with the other side.
Consulting Expert:
someone that you hire to look at the case and give you an opinion. These witnesses are not going to testify and their opinion does not have to be shares with the court record.
Admissible Evidence:
Anything that a judge will let the judge consider.

It does not mean the evidence is true or credible.

Allowed in court to determine its truth or believability

The judge has to allow evidence unless there is a reason why it can not be allowed.
Types of Evidence
EARN:

E-evidence
A-admissible
R-relivant
N-necessary
Direct Evidence
Evidence (based on personal knowledge or observation) that tends to establish fact (or disprove a fact) without the need for an inference.
Circumstantial Evidence:
A set of facts lead to opinion. Evidence of one fact from which another fact can be inferred.

Used by lawyers to guide a jury to a conclusion.
Relevance:
Logically tending to establish or disprove a fact. Pertinent.

Necessary to make an informed decision.
Privilege
A right to refuse to testify or stop someone else.

Usually criminal case, sometimes civil case, but not very often.
Privilege against Self-Incrimination
Accused person cannot be forced to testify in a criminal proceeding.
Spousal Privilege:
A spouse cannot be forced to disclose confidential communications that are made between them in marriage.

Both spouses must consent to the disclosure.
Waived Privilege:
If you waive privilege, you are far game to be cross examined.

Waived more in civil cases than criminal.
Clergy/ Penitent
The clergy can refuse to disclose any confidentail communications between the clergy and penitent.
Doctor/Patient
a doctor can refuse to disclose any confidential communications between them.
Attorney/Client
An attorney and client can refuse to disclose any communication between them to facilitate the legal services.
Government Information
Some information collected by the government about citizens is confidential Ex. adoptions and tax records.
Witnesses:
1. Hostile
2. Skeptical
3. Friendly
4. Disinterested or neutral
5. Combination
Hostile Witness:
No sympathy. Wants your client to lose. They may set up road blocks. Being hostile does not make them a liar.
Skeptical Witness:
"on the fence". Unsure of you intentions and motives.

Often guarded.
Friendly witness:
Cooperative

Too helpful
Disinterested Witness:
not working for one side or the other in a controversy.
Ex. Doctors, Police etc..
Combination Witnesses:
Most witnesses are a combination of the other types.
Interviewing a witness:
Be honest about who you are.
Tell them why you are there.
Ask if now is a good time or make an interview.
Build a relationship.
Have business cards
Offer if the want to see your I.D.
Evaluate Witness
Effective to a jury???

Only share this information with your supervisor.