Chapter 1

Federal Rules of Evidence

Admissibility
Relevance
Attorney/client
Witnesses
Hearsay
States can adopt partially or totally
Criminal cases require beyond a reasonable doubt - both bench trial and jury trial
Civil is preponderance of evidence ie <50% positive

Arrest to Trial

Time of Arrest- People Involved-Officers, Investigators, EMT-write reports

Probable cause statements.
Prosecutor - file charges, review probable cause statement, interviews, burden of proof
Probable cause statements.
Probable cause statements are used to bring a charge
Felony Classes A,B,C,D; Misdemeanor
Defense Attorney - View crime scene, does not have to prove anything, review
evidence finds weak link in evidence, suppress evidence - motion to
suppress,
Court
Arraignment - formal reading of charge
Preliminary Hearing (Felony) Can either be waived or have full preliminary
hearing - requires prosecutor to prove that they obtain evidence
that contains enough probable cause to move forward with trial.
Arraignment
2nd Arraignment is first opportunity to plead guilty
Charges are read
Docket Call - only if has plead not-guilty during arraignment
Trial Date
Trial
Evidence is kept from being submitted by having court dates between
Docket Call and Trial
Defense
Motion to Suppress-formal, written request to a judge for an order that certain
evidence ( ie evidence obtained illegally ) be excluded from
consideration, outlines evidence to be suppressed and
why
Motion in Limine - motion made before the start of a trial requesting that the
judge rule that certain evidence may, or may not, be
introduced to the jury in a trial

Discovery-Records, Information Gathered about incident

Chapter 3&4

Trial
Voir Dire - jury : 40 called, 12 chosen
Prosecuting Attorney ask questions first
Questions are asked questions to eliminate jury members.
Followed by Defense Attorney

Opening Statements
Prosecuting Attorney is required to present statement
Defense Attorney is not required to give opening statement

Prosecuting Attorney
- calls first witness
when PA questions their own witness it is called Direct Examination
leading questions are not allowed
may not provide cumulative evidence
Defense Attorney - questions each witness after Prosecuting Attorney
leading questions are allowed

when going back to same witness to ask questions it is called

redirect or recross

Rest- completion of witness and evidence

Motion for Judgement of Acquittal at the close of state evidence

Says the prosecutor did not have enough evidence to find defendant
guilty
Defense Attorney
- calls first witness
when DA questions their own witness it is called Direct Examination
leading questions are not allowed
Prosecuting Attorney - cross examines

Motion for Judgement of Acquittal at the close of all evidence

 Closing Arguments
Prosecutor goes first.
Reminder to juror about past evidence
Defense follows.
Reminds juror of evidence
Prosecutor is allowed to speak a second time

Deliberation
Jury must follow jury rules

Mistrial - error in proceding

Hung Jury - Jury doesn't have a decision

Bench Trial - judge hearing case - judge rules on issues of law and fact
Jury Trial - 12 jurors -Jury rules on issues of fact, judge still rules on issues of law

Objections
Must be timely- After question is asked but before an answer is given
Reasons for objections
Irrelevant
Prejudicial - favor swinging one way or another due to
evidence presented
Leading Questions
Badgering Witness
Hearsay

Prosecuting Attorney must reveal Exculpatory evidence to Defense Attorney

Judicial Notice - The court's authority to accept matters of common knowledge or indisputable
fact without anyone having to present evidence on the point. pg. 86

Chapter 6 - Presumption

Presumptions of Fact
Natural Presumptions that appear from common experience and logic that arise
from the particular circumstance of any case.
Presumptions of fact can be rebutted by introducing evidence.
Presumptions of Law
 A legal assumption that a court is required to make if certain facts are established
and no contradictory evidence is produced.
Presumption of Innocence
Presumption of Sanity
All Person Presumed to Know the Law
Presumption of Paternity
Presumption of Death

Stipulations
An agreement or admission made in court by the parties or their attorneys, which results
in the court possibly considering the fact without any further proof.
Court is not required to accept the stipulated facts as true
May be oral or written
Even if both sides agree about something one side cannot force the other side to
stipulate something
Benefits to Stipulating
Saves time by not having to prove certain facts that are agreed upon
-otherwise, research may be required and time will be required
to gather evidence for trial to prove certain facts
Saves money (expenses of lengthy trials)
-client
-taxpayer

Admissability Test Regarding the Rules of Evidence

Relevant Evidence
Evidence having any tendency to make the existence of any fact more probable
or less probable than it would be without the evidence.
Things to consider when determining relevency
Identity of Persons
Do the prosecutors have the right person?
Are there witnesses who can identify the defendent
Identity of Things
Items of Personal Property may place a particular person at a particular
place or property may have been used in a certain way.
Consider DNA, bite marks & other forensic evidence
Circumstances preceding the crime
Preperation, Planning, & Calculation
Subsequent Incriminating or Exculpatory Evidence
What did the Defendent allegedly do after the commission of the crime?
Use a fake name..
Resist Arrest...
Tried to destroy...
Tried to change their appearance...
 Material Evidence
Has to do with how important the evidence really is. Must help prove or disprove
issues in the case.
Sometimes evidence may be RELEVANT, but may not be MATERIAL.
Immaterial of the evidence is only slightly relevant.
Immaterial if the evidence is too far removed from the commission of the
crime.
Reasons to Exclude Relevant & Material Evidence
The probative value is substantially outweighed by the danger of unfair prejudice
if the evidence evokes an emotional bias against the defendant, it may
create an unfair prejudice
Introduction of the evidence would confuse the issues
If a witness wrongdoings are mentioned to try to impeach that person the
jury may confuse those issues with the issues of the defendant ..
with the outcome being unfavorable to the defendant
The evidence would mislead the jury
Prosecuting Attorney should not introduce evidence that was not part of
the present offense
The evidence would not unduly delay the trial of the case, waste time, or
needlessly present cumulative evidence.
Prosecuting Attorney may have enough evidence to prove their case
without introducing extra evidence
Competency
Test to Determine Competency
Witness must take oath
Witness must have personal knowledge of the facts
Be able to remember the facts
Have an ability to communicate to the court.
Challenging Competency Based on:
Mental Incapacity
competent to testify unless evidence is introduced to show that
incompetency exists
Child Witness
NO fixes age for competency
Do they know the difference between telling the truth and telling a lie
They do NOT need to know the concept of perjury
Witnesses with Prior Convictions
Common Law-felony convictions meant that witness was incompetent
Today, convicted felons are considered competent witnesses but
credibility is determined by judgeor jury
Religious Belief
Witness must understand teh obligation of taking an oath and the
 consequences of perjury
Competency of Judges and Jurors as witnesses
A Judge may not testify as a witness at a trial in which he/she is presiding
A Juror may not testify at a trial in which they are sitting

Test #1 Notes
What happens when an attorney doesn't follow the judges instructions regarding a ruling
on a Motion in Limine or a Motion to Suppress - Mistrial.

Post-midterm

Leading questions are typically only allowed on cross examinations, however they are allowed
in direct examination if the witness is a Hostile Witness.

Impeachment - tests credibility of witness

Prior Inconsistent Statements - deposition or police reports
Bias
Poor Character for Veracity - cant tell the truth
Past Criminal Convictions
Crimes of Dishonesty
Embezzlement
Stealing
Forgery
Prior Bad Acts
Reputation in the Community for Poor Veracity or Honesty
Opinion Evidence of Associates
Defect Inability
Sensory Defect
Situational Defect
Contradiction

Deposition - taking of testimony outside of court

Privileges
Holder of Privileges - who has the right to invoke the privileges
Privileges are held as long as all parties are necessary to effect the relationship
Doctor/Patient Privileges
Attorney/Client Privileges
Priest/Penitent
Husband/Wife
 Confidential Marital Communication Privilege
Spousal Refusal Privilege - have to be married at time of trial
Exception when Husband/Wife are co-conspirators
An agreement to commit a crime together
Spousal Privilege - must be married at time of trial

Witnesses

Lay Witnesses: First Hand Knowledge

Helpful to Fact Finder
Not based on Scientific Knowledge/ no specialized training
Can testify on :
Age
Conduct
Speed of Cars
Appearance
Hand Writing Samples
Distance and Space
Sanity
Drugs smells etc.
Expert Witness: Technical Knowledge
Specialized Training
Examples:
Auto Accidents
Typewriter Indentions

Hearsay
An out of court statement made by the declarant, testified to in court by someone else
offered to prove the truth of the matter asserted.

A. Unavailability Exceptions
Dead
Out of Town
Hospital
Jail/Prison
Invoke a Privileges (Marriage Privileges etc.)
Refuses to Testify
No Memory
Incompetent
Dying Declaration
An out of court statement, made by declarant who believes that
his death is imminent, about the causes and circumstances of
death, Declarant must be unavailable.
**Person does not need to die**
Declaration Against Interest
Declarant must be aware that the statement is against their
interest
Interest Regarding Money
Penal Interest
Interest Regrading Property
Declarant must be unavailable.

B. Spontaneous Exceptions
Present Physical Condition
Any statement about the declarants present physical condition is
admissible.
I feel hot
I feel faint
My leg hurts
My stomach hurts
etc.
Present Mental State
Any statement about the declarants mental condition is
admissible.
I feel depressed
I feel down
The voices inside my head told me to kill him
Excited Utterances
An out of court statement related to a startling event made while
the declarant was still under stress, pertaining to the event.
*Think about Timing Issues*

Present Sense Impression

Declarant narrating what they are seeing or hearing at the present
time.
Does not have to be a startling event.

C. Records Exception
Business Records Exception
Types of records being offered has to be the type the entity keeps
Record has to be created at or near the time of the events
Must be prepared by someone with personal knowledge
(Custodian of Records)
 Past Recollection Recorded
Witness who cant remember and they testify that they made a record of
the event
Declarant has lack of memory
Record was made when the event was fresh in the
declarant mind
Record was accurate when made.

Declarant is someone who makes the original statement.