Criminal Evidence 6th Edition Norman M. Garland Chapter 1 INTRODUCTION TO THE LAW OF EVIDENCE AND THE PRE-TRIAL PROCESS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Legal Definition of Evidence o In a legal sense, evidence is any information about the facts of a case, including tangible items, testimony, and documents, photographs, or tapes, which, when presented to the jury at trial, tends to prove or disprove these facts. Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Technical Definition of Evidence Technically, evidence consists of: o Testimony or physical items presented to the judge and jury that they use to: o decide the truth of an assertion, o the existence of a fact, and o ultimately the guilt or innocence of the accused in a criminal case.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Chain of Custody o The chain of custody refers to how evidence is handled, and by whom, from the moment it is found until the moment it is offered in evidence. o Simply stated, no item of physical evidence can be introduced at trial unless the law enforcement officer has maintained the proper "chain of custody" of the item.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Forms and Types of Evidence o Real o Demonstrative o Direct o Circumstantial o Physical o Intangible o Testimonial Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Step-by-Step Development of our Modern Trial by Jury System The Grand Jury System o The Petit Jury (circa 1700 A.D.) o The swearing in of witnesses. o The right to cross-examine witnesses. o Hearsay evidence began to disappear from the judicial process. o Rules of evidence began to develop. Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Development of the Rules of Evidence o Rules of evidence in jury trials are designed to keep some relevant information from the jury. Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Why isn’t all relevant evidence admissible at trial? o May violate some principle or policy that the law seeks to promote. o May have been obtained by a law enforcement officer in violation of a suspect's constitutional rights. Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. o Today the rules of evidence in most jurisdictions are in the form of a statute or penal code, meaning that they are laws enacted by a legislative body. The Forms of Evidence Rules Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Federal Rules of Evidence o By far the most common codification of evidence law is the Federal Rules of Evidence (FRE). o The FRE apply in all federal courts throughout the United States, and 42 states have relied upon them as a model in adopting their own evidence codes.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The FRE in the 90’s o Forty-two state legislatures had adopted the FRE as of September, o States that have not yet adopted the Rules include: California, Georgia, Illinois, Kansas, Massachusetts, Missouri, New York, and Virginia.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Breadth & Scope of the FRE o The FRE, and their state counterparts, cover the entire field of judicial procedure. o These rules apply equally in civil and criminal matters. Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. OVERVIEW OF THE CRIMI NAL JUSTICE PROCESS o Observation or report of a crime o Investigation o Arrest o Prosecution o Trial o Sentencing o Appeal o Service of sentence o Release Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Participants in the Criminal Justice System o Law enforcement o The prosecution and defense o The courts and o Corrections Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Role of Law Enforcement o The police are called upon to perform three basic functions: o (1) enforcing the law; o (2) maintaining public order; o (3) providing various public services. The McGraw-Hill Companies, Inc./Jill Braaten, Photographer

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Federal Law Enforcement o Federal law enforcement agencies investigate federal law violations o The Federal Bureau of Investigation (FBI) o The Drug Enforcement Administration o The Bureau of Alcohol, Tobacco, and Firearms o The Customs Service

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Additional Federal Law Enforcement Agencies o The Immigration and Naturalization Service o The United States Marshals Service o The Border Patrol, United States Park Service o The Bureau of Postal Inspection, and o The Secret Service

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Specialized Fields and Personnel Within Law Enforcement o Ballistics o Fingerprint analysis o Blood stain analysis o DNA analysis o Investigators o Courtroom personnel (bailiffs, marshals, or other guards) o Jail personnel o Probation officers, and prison personnel o Other areas of scientific methodology

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Prosecutor’s Office It is the job of the prosecutor to: o Pursue a case developed by the police until the case terminates by trial, guilty plea, or dismissal. o Decide whether to pursue a formal charge, and, if so, what crime to charge. o Conduct any plea negotiations, deciding whether to dismiss charges. o Try the case.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Dual Court System o There is a dual judicial system in the Untied States: the federal and state courts coexist. o The federal court system applies nationwide, and federal courts are located in each state. PhotoLink/Getty Images

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Court Jurisdiction: The Power or the Authority for the Court to Act Federal courts coexist with individual state court systems. o Whether a defendant is tried in a federal or state court depends on which court has jurisdiction over the particular case. o The acts involved in the case must have taken place within or have had an effect within the geographical territory of the court, or there must be some statutory authority for the court's power.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Federal Court System o There are currently federal trial courts in each state and twelve United States Courts of Appeal, arranged by circuit (eleven numbered circuits and one federal circuit). o The lowest level of the federal court system consists of 94 district courts located in the 50 states (except for the District of Wyoming, which includes the Montana and Idaho portions of Yellowstone National Park).

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Venue vs. Jurisdiction o Venue refers to the neighborhood, place, or county in which an act is declared to have been done, or in fact happened; and, thus, defines the particular county, or geographical area, in which a court with jurisdiction may hear and determine a case. o Jurisdiction refers to the power or the authority of the Court to act. o The Distinction should not be overlooked!

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Individual Constitutional Rights in a Criminal Case The Fourth Amendment of the Bill of Rights: o the freedom from unreasonable searches and seizures McGraw-Hill

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Individual Constitutional Rights in a Criminal Case The Fifth (and Fourteenth) Amendment Rights: o the right to silence and counsel during police interrogations (in support of the Fifth Amendment's privilege against self- incrimination); o the freedom from double jeopardy; o the privilege against self-incrimination, including a ban against comment by the prosecution on the defendant's failure to testify.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Constitutional Rights The Sixth Amendment Rights The Sixth Amendment Rights: o the right to trial by jury in cases involving serious offenses o the right to assistance of counsel in any case in which a sentence of more than six months in jail or prison is imposed o the right to compel witnesses' attendance at trial, to confront them, and to cross- examine them o the right to a speedy and public trial

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Eighth and Fourteenth Amendments o the freedom from cruel and unusual punishment o the freedom from racial and sexual discrimination in substantive and procedural criminal law (Fourteenth Amendment)

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Juvenile Court System o There is also a juvenile court system in each state. o Criminal offenders under a certain age, usually eighteen or sixteen, are dealt with in juvenile courts by way of civil, rather than criminal, proceedings. Jack Star/PhotoLink/Getty Images

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Juvenile Court: Then and Now McGraw-Hill

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Correctional Component o All states maintain state penal institutions (prisons), consisting of state penitentiaries, reformatories, and training facilities for juveniles. Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Prisons: A Growth Trend o There are more than 600 state prison facilities in the United States, with a total population in all the country's state and federal prisons of an estimated 1.4 million by mid Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Probation o The probation department investigates defendants prior to sentencing and provides a pre-sentence probation report to the court. o Over 4 million adults are on probation on any given day in the United States. o Probation is the most frequent sentence imposed on first-time offenders.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Parole: After Incarceration o A person may be sentenced to a term in prison but released on parole prior to the expiration of the full sentence. o Supervision on parole is similar to probation supervision. o Violations of probation and terms of parole lead to hearings that, may in turn, lead to warning, incarceration, or re-incarceration.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Pretrial Court Process o Arrest o Bail o Plea Bargaining o Charging the Crime o Arraignment and Plea o Pretrial Motions

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Probable Cause Probable cause to arrest exists when: o a police officer has enough evidence to lead a reasonable person to believe that a crime has been committed and that the suspect was the one who committed the crime. McGraw-Hill

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Affidavit o The complaint charges the defendant with a particular crime and is supported by an affidavit, a written statement sworn under oath, in which the officer states the facts within his or her personal knowledge that support the complaint.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Bail o Most suspects are entitled to release after arrest and booking, either on the accused's own recognizance or on bail. o In less serious cases, this release can be approved at the station house. o In more serious cases, the judge decides conditions for release at the initial appearance.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. Types of Bail o Recognizance is a promise by a person to appear in court. o Bail is a deposit of cash, other property, or a bond, guaranteeing that the accused will appear in court. o A bond is a written promise to pay the bail sum, posted by a financially responsible person, usually a professional bondsman.

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Preliminary Hearing o The preliminary hearing is the stage in which the judge considers the prosecution's case to decide whether there is probable cause to believe the defendant committed the crimes charged. o If so, the defendant is held to answer to formal charges in the form of a grand jury indictment or an information. Royalty-Free/CORBIS

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Indictment or the Information o The grand jury indicts. o The prosecutor files an information. o Each will formally charge the defendant. PhotoDisc/Getty Images

© 2011 The McGraw-Hill Companies, Inc. All rights reserved. The Arraignment At the arraignment, the defendant can enter a plea of: o guilty o not guilty o nolo contendere (no contest), or o stand mute McGraw-Hill