CJ305 Criminal Evidence Welcome to our Seminar!!! (We will begin shortly) Tonight – Unit 8 (Chapter 10 – The Exclusionary Rule – ID Procedures) (Chapter 11 – Circumstantial Evidence) (Chapter 13 – Physical Evidence)

CJ305 Criminal Evidence - Unit 7 Mini Review In Unit 7 we discussed: –Chapter 9 in your textbook –The Exclusionary Rule –Searches and Seizures –Stop and Frisk –Fruit of the Poisonous Tree Doctrine –Exceptions to the Warrant Requirement

CJ305 Criminal Evidence - Unit 8 – Mini Preview In Unit 8 we will be discussing: –Chapters 10, 11 & 13 in our text. –Line-ups –Show-ups –Direct Evidence –Circumstantial Evidence –Character Evidence –Physical Evidence

CJ305 Criminal Evidence - Unit 8 In our last seminar, we learned that the Exclusionary Rule (established in Weeks v. US) makes even relevant evidence inadmissible at trial against the defendant if the defendant’s 4 th, 5 th or 6 th Amend right have been violated. If a search or seizure takes place before the ID process and the search or seizure is found to have violated the defendants 4 th 5 th or 6 th Amend rights during the investigation, the subsequent ID will also be inadmissible as Fruit of the Poisonous Tree.

CJ305 Criminal Evidence - Unit 8 What is a line-up? What is a show-up? What is a photo array?

CJ305 Criminal Evidence - Unit 8 Line up - A presentation to a victim or a witness of a line of people who all look similar to see if one can be identified as the perpetrator of the crime. Show up – The one on one presentation of a suspect to a victim or witness for identification purposes. Photo Array – A presentation to a witness of a number of photos for the identification of the perpetrator.

CJ305 Criminal Evidence - Unit 8 Which amendment gives defendants the right to have counsel present at an identification? What is the Critical Stage Test for the Right to Counsel? When does a person NOT have the right to have an atty present at an identification?

CJ305 Criminal Evidence - Unit 8 The 5 th Amend gives defendants the right to have the assistance of counsel prior to trial. The Critical Stage test holds that the right to counsel applies upon the initiation of adversarial proceedings, whether by way of formal charge(s), preliminary hearing, indictment or arraignment. (6 th Amend) Under the 6 th Amend, a defendant who has not been formally charged with a criminal offense is NOT entitled to the assistance of counsel at an identification proceeding. The legality of pre- charge identifications are examined under the 5 th Amend.

CJ305 Criminal Evidence - Unit 8 What is meant by an unnecessarily suggestive identification? What is the test for suggestiveness? What is the Biggers test and what does it provide?

CJ305 Criminal Evidence - Unit 8 Unnecessarily suggestive identifications are illegal and inadmissible at trial as a violation of the defendant’s Due Process rights. This means that an identification procedure may be unnecessarily suggestive based solely on the makeup or content of the lineup or photo array. The test for suggestiveness is based on the totality of the circumstances. This takes into consideration all of the surrounding circumstances to determine whether the exclusionary rule applies. In Biggers, the court est. a 5 part test for suggestive- ness: –The opportunity of the wit to view the criminal at the time of the crime –The witness’s degree of attention to the relevant facts and situation. –The accuracy of the witness’s prior description of the criminal. –The level of certainty demonstrated by the witness at the confrontation –The length of time between the crime and the confrontation.

CJ305 Criminal Evidence - Unit 8 What are some of the things that can make an identification suggestive?

CJ305 Criminal Evidence - Unit 8 Potentially suggestive identification procedures: –Size of the line up or photo array –Make up of the line up or photo array –Different appearance of the accused –Witness collaboration –Police instructions or statements to witnesses –Different type or quality of photos –Contents in, on or around the photographs –Alteration/disguise of photographs (retouching)

CJ305 Criminal Evidence - Unit 8 What is direct evidence? What is circumstantial evidence? Hypothetical: A witness overhears a heated argument in a closed door room then hears a gunshot. The witness then sees the accused, holding a gun, run from the closed door room in which the victim was found dead. (from these facts it can be inferred that the accused is guilty of the homicide). –Is this an example of direct or circumstantial evidence?

CJ305 Criminal Evidence - Unit 8 Example: A witness overhears a heated argument in a closed door room then hears a gunshot. The witness then sees the accused, holding a gun, run from the closed door room in which the victim was found dead. (from these facts it can be inferred that the accused is guilty of the homicide). Direct evidence - Testimony of a person who asserts or claims to have actual knowledge of a fact such as an eyewitness. Circumstantial evidence – Evidence which tends to establish the facts in dispute by proving the existence of another set of facts from which an inference or presumption can be drawn.

CJ305 Criminal Evidence - Unit 8 What is relevance? What is a motion in limine? What is the balancing test as applied to the admissibility of evidence?

CJ305 Criminal Evidence - Unit 8 Relevance – A showing that an item of evidence has a tendency to prove or disprove a matter of consequence in a trial. Motion in limine – A motion to exclude or admit evidence, usually made prior to trial and heard out of the presence of the jury. Balancing test – requirement that relevant evidence be excluded if its probative value is outweighed by its prejudicial effect. (unfair prejudice, confusion of the jury, undue delay or needless presentation of cumulative evidence)

CJ305 Criminal Evidence - Unit 8 What is the character evidence rule? When can character evidence be admitted against the defendant? What is motive? What is intent?

CJ305 Criminal Evidence - Unit 8 The character evidence rule prohibits evidence of a person’s trait of character to prove conduct in conformity with that trait on a particular occasion. (The mere fact that the accused has committed other bad acts or crimes does not necessarily mean that the accused is guilty of the new charge). Evidence of bad acts not to prove a trait of character but to prove something else like motive, opportunity, intent, preparation, plan, knowledge, identity absence of mistake or accident. Motive – That which moves a person to act or which explains the reason why a person acted as they did. Intent – A state of mind which expresses mental action which is usually coupled with an outward physical act to cause a particular result. –Motive is that which moves a person to act, whereas intent is a state of mind

CJ305 Criminal Evidence - Unit 9 – Mini Preview Prior bad acts that are evidence of a common plan or design can be used to prove that the defendant engaged in the conduct for which he or she is charged. Also, under FRE 404(b), other crimes or misconduct of the accused can be strong circumstantial evidence of guilt with respect to motive, preparation and intent. FRE 413 allows the prosecution in sexual assault cases to introduce evidence regarding other uncharged sexual misconduct by the accused

CJ305 Criminal Evidence - Unit 8 What is the Defendant’s Good Character Rule? What is meant by impeachment? What is meant by Modus Operandi? What is the Doctrine of Chances?

CJ305 Criminal Evidence - Unit 8 Defendant’s Good Character Rule – Permits the defendant to introduce evidence of good character in an attempt to prove his/her innocence. Impeachment – Process, act or result of refuting or contradicting a witnesses testimony or the contention of a party at trial. Modus Operandi – the distinctive pattern of committing crimes Doctrine of Chances – the use of evidenceof other similar occurences to convince a jury that the charged crime is not an isolated event due to chance

CJ305 Criminal Evidence - Unit 8 What is physical evidence? What is real evidence? What is demonstrative evidence? What is authentication?

CJ305 Criminal Evidence - Unit 8 Physical evidence – Material objects in a criminal trial such as a gun, knife, fingerprints. Real evidence – The object itself. Demonstrative evidence – The representation of an object to be introduced into evidence such as a copy, imitation, computer rendering or model. Authentication – Presentation of proof to show that an object is what its proponent claims it to be.

CJ305 Criminal Evidence - Unit 8 Mini Review In Unit 8 we discussed: –Chapters 10, 11 & 13 in our text. –Line-ups –Show-ups –Direct Evidence –Circumstantial Evidence –Character Evidence –Physical Evidence

CJ305 Criminal Evidence - Unit 9 Mini Preview Our last seminar for this class!!!! In Unit 9 we will discuss: –Unit 12 & 14 in our textbook –Documentary Evidence –Best Evidence Rule –Right to Discovery –Admissibility …and as always much much more….so I look forward to seeing everyone in our next seminar Until then, I look forward to seeing everyone on the discussion boards…. Thank you!!