Page i

CRIMINAL EVIDENCE
NINTH EDITION

Norman M. Garland
Second Century Chair in Law

Professor of Law

Southwestern Law School–California

Page ii

CRIMINAL EVIDENCE, NINTH EDITION

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Library of Congress Cataloging-in-Publication Data

Names: Garland, Norman M., author.

Title: Criminal evidence / Norman M. Garland, Second Century Chair

in Law,

Professor of Law, Southwestern Law School--California.

Description: Ninth edition. | New York, NY : McGraw Hill LLC,

[2024] |

Includes bibliographical references and index.

Identifiers: LCCN 2022037388 (print) | LCCN 2022037389 (ebook) |

ISBN 9781264296804 (hardcover) | ISBN 9781265286736 |

ISBN 9781265289850 (ebook)

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Page iii

This book is dedicated to Melissa Grossan.

Page iv
Page v

About the Author

Norman M. Garland is second-century chair in law and professor of law at
Southwestern Law School in California, where he teaches Evidence,
Criminal Procedure, Advanced Criminal Procedure, and Trial Advocacy. He
received his B.S.B.A. and J.D. from Northwestern University; his L.L.M.
from Georgetown Law Center, where he was an E. Barrett Prettyman
Fellow in Trial Advocacy; and an Honorary LL. D. from Southwestern Law
School in 2016. Professor Garland is a member of the Illinois, District of
Columbia, and California Bars. He has 10 years of trial experience as a
criminal defense attorney, mainly in federal felony cases. In 1968, he joined
the law faculty at Northwestern University, where he helped establish the
Northwestern Legal Clinic. He joined the faculty of Southwestern Law
School in 1975 to help establish the Southwestern Approach to Conceptual
Legal Education (S.C.A.L.E.). In the mid-1980s, he spent two summers as
Deputy District Attorney in Ventura County, California, where he gained
experience as a prosecutor. He is coauthor of Exculpatory Evidence, 5th ed.
(Lexis-Nexis, 2021), coauthor of Advanced Criminal Procedure (West
Nutshell, 2d ed., 2006), and author of Criminal Law for the Law
Enforcement Professional, 5th ed. (McGraw-Hill, 2018). Professor Garland
has published a number of CALI Lessons in criminal law and evidence
([Link]) and has published numerous articles in legal journals.

Page vi
Page vii

Brief Contents
1. Preface xiii

2. Chapter 1Introduction to the Law of Evidence and the Pretrial Process

3

3. Chapter 2The Trial Process 27

4. Chapter 3Evidence—Basic Concepts 57

5. Chapter 4Witnesses—Competency and Privileged Communications

79

6. Chapter 5Witnesses—Lay and Expert 115

7. Chapter 6Credibility and Impeachment 155

8. Chapter 7The Hearsay Rule 179

9. Chapter 8Opposing Party’s Statements (Admissions) and Confessions

227

10. Chapter 9The Exclusionary Rule—Search and Seizure 267

11. Chapter 10Exclusionary Rule—Identification Procedures 343

12. Chapter 11Circumstantial Evidence 367

13. Chapter 12Documentary Evidence and the Right of Discovery 397

14. Chapter 13Physical Evidence 423

15. Chapter 14Photographic, Recorded, and Computer-Generated

Evidence 445
16. Chapter 15How to Testify Effectively 469

17. Glossary 485

18. Case Index 494

19. Subject Index 497

Page viii

Contents
1. Preface xiii

2. Chapter 1Introduction to the Law of Evidence and the Pretrial Process

3

Introduction to the Rules of Evidence: Definition of Evidence 4

The Rules of Evidence 5

Introduction to the Law of Evidence and the Pretrial Process 7

Overview of the Court Process: The Pretrial Process 8

Participants in the Criminal Justice System 12

The Pretrial Court Process 19

Review and Application 23

3. Chapter 2The Trial Process 27

Introduction 28

Jury or Court Trial 29

The Jury 30

The Judge 35

Prosecuting Attorney’s Responsibility and the Burden of Proof

Beyond a Reasonable Doubt 35

Role of the Defense Attorney 38

 Opening Statement 39

Making the Record 40

The Prosecution’s Case-in-Chief 41

Witness Requirements 43

Examination of Witnesses 43

Defense Presentation 49

Prosecution’s Rebuttal 49

Defense’s Surrebuttal 50

Closing Arguments 50

Instructions, or Charge, to the Jury 50

Deliberation and Verdict 51

Sentencing the Defendant 51

Review and Application 52

Page ix

4. Chapter 3Evidence—Basic Concepts 57

Describing Evidence 58

Judicial Notice 63

Presumptions 67

Burden of Proof 73

Stipulations 74
 Review and Application 74

5. Chapter 4Witnesses—Competency and Privileged Communications

79

Introduction 80

Who Is a Competent Witness? 81

Privileged Communications 85

Husband and Wife Relationship 89

Parent-Child Privilege 93

Attorney-Client Privilege 94

Physician-Patient and Psychotherapist-Patient Privileges 97

Clergy-Communicant Privilege 102

Identity of Informer Privilege 103

Accountant-Client Privilege 105

News Reporter–News Source Privilege 106

Review and Application 108

6. Chapter 5Witnesses—Lay and Expert 115

Becoming a Witness 116

Lay, or Ordinary, Witnesses 121

Expert Witnesses 132

Refreshing Recollection 145

Review and Application 149

7. Chapter 6Credibility and Impeachment 155

Credibility 156

Basic Methods of Impeachment 158

Bad Character for Truthfulness 159

Contradiction 162

Prior Inconsistent Statements 163

Bias or Motive to Falsify 165

Witness Incapacity 167

Impeachment: Other Issues 168

Self-Incrimination 170

Review and Application 174

8. Chapter 7The Hearsay Rule 179

Introduction 180

Rationale for the Rule and Constitutional Considerations 182

Components of the Hearsay Rule 184

Page x

Statements That Are Not Hearsay Because They Are Not Offered
for the Truth of the Matter Asserted 188

Hearsay Exemptions 192

Specific Hearsay Exceptions 195

 Statements Made Under Sense of Impending Death (Dying
Declarations) 195

Declarations Against Interest 199

Spontaneous Utterances: Present Sense Impressions and Excited

Utterances (a.k.a. Res Gestae) 200

State of Mind 205

Former Testimony 211

Business and Public Records 212

Pedigree or Family History 217

Past Recollection Recorded: Only Read into the Record 218

Review and Application 218

9. Chapter 8Opposing Party’s Statements (Admissions) and Confessions

227

Introduction—Opposing Party’s Statements (Admissions) and

Confessions Generally 228

Opposing Party’s Statements (Admissions) 229

Confessions—General Principles and Considerations 230

Confessions Excluded Due to Violation of Due Process of Law:

Coerced Confessions 233

Exclusion of Confessions Due to Violation of Rights Secured

Under Miranda v. Arizona 237

Exclusion of Confessions Due to Violation of the Sixth

Amendment Right to Counsel 250
 Confession Given After an Unlawful Search and Seizure May Be
Excluded 254

The Continued Importance of Confessions as Evidence 254

Procedure for Introduction of Confessions 256

Wording of Confessions 257

Confession Implicating a Codefendant 259

Proof of the Crime in Addition to a Confession—The

Requirement of Corpus Delicti 260

Review and Application 260

10. Chapter 9The Exclusionary Rule—Search and Seizure 267

Introduction: What Is the Exclusionary Rule? 268

The Scope of Searches and Seizures 275

What Is a Search? 275

What Is a Seizure? 284

Ways of Making a Reasonable Search and Seizure 285

Page xi

Search Pursuant to a Search Warrant 286

Reasonable Searches Without Warrant: Exceptions to the Warrant

Requirement 302

Search and Seizure on Less than Probable Cause: Stop and Frisk
and Reasonable Suspicion in Other Circumstances 322
 Suspicionless Stops and Searches: The Special Needs Exception
to the Probable Cause and Warrant Requirements 330

Objecting to the Introduction of Evidence Claimed to Be Illegally

Seized 332

Review and Application 336

11. Chapter 10Exclusionary Rule—Identification Procedures 343

Identification Procedures and the Exclusionary Rule 344

Identification Procedures and the Right to Counsel 344

Identification Procedures and Due Process 347

Types of Suggestive Identification Procedures 353

Determining the Reliability of a Suggestive Identification: The

Five Factors of the Biggers Case 357

Review and Application 362

12. Chapter 11Circumstantial Evidence 367

Direct Evidence Versus Circumstantial Evidence 368

Admissibility of Other Crimes, Acts, or Wrongs 373

Means or Capability to Commit a Crime 379

Consciousness of Guilt 380

Character of the Defendant 381

Character of Victims 385

Character of Witness 390

 Review and Application 391

13. Chapter 12Documentary Evidence and the Right of Discovery 397

Documents as a Kind of Evidence 398

Authentication 398

Best Evidence Rule 399

The Right of Discovery in Criminal Cases 404

Discovery Through Preliminary Hearing 407

Growth of the Right of Discovery 408

Pretrial Discovery 409

Prosecution’s Right of Discovery 412

Defendant’s Right to Original Investigative Notes and

Recordings 413

Review and Application 418

Page xii

14. Chapter 13Physical Evidence 423

What Is Physical Evidence? 424

Sources of Physical Evidence 426

Connecting Objects with Issues at Trial: Chain of Custody, or

Possession 429

Marking Objects for Identification 433

Storage of Physical Evidence 435

 Delivering Physical Evidence 437

Preparation of Physical Evidence for Use in Court 437

Gruesome Objects 438

Physical Objects Not Produced in Court 439

Viewing of the Crime Scene by the Jury 440

Application Case 440

Review and Application 441

15. Chapter 14Photographic, Recorded, and Computer-Generated

Evidence 445

Photographs, Recordings, and the Like as Evidence 446

First Rule of Admissibility—Foundation for Relevance 450

Second Rule of Admissibility—Foundation for Authentication

453

Posed Photographs and Video Recordings 460

Methods of Presentation in the Courtroom 461

Consideration of Other Matters 463

X-Ray Photographs 464

Review and Application 465

16. Chapter 15How to Testify Effectively 469

The Law Enforcement Professional’s Role 470

Problems of the New Professional: Notification to Appear 470

 What to Do Before the Trial 471

What to Wear in Court 472

Where to Appear and What to Do 473

Conduct Before and During the Court Session 474

On the Witness Stand 476

After Testifying 483

Review Case After Verdict 483

Review and Application 483

17. Glossary 485

18. Case Index 494

19. Subject Index 497

Page xiii

Preface
The ninth edition of Criminal Evidence presents the basic concepts of criminal
evidence applied in the criminal justice environment. Criminal Evidence, ninth
edition, includes a description of the trial process, types of evidence, the rules
relating to relevance, hearsay (including the Confrontation Clause), documentary
evidence, qualification of witnesses, privileges, presumptions, judicial notice,
photographs, and character. The text also presents the principles relating to the
impact of the Constitution of the United States on the admissibility of evidence
(i.e., search and seizure, opposing party’s statements (admissions) and
confessions, the right to counsel, and identification procedures). Finally, the text
presents those principles relating to the law enforcement professional as a
witness.

This text is written in a clear, lively, and personal style to appeal to criminal
justice professionals and students on the way to becoming professionals. Special
attention is given to helping students understand the legal aspects of the principles
relating to the admissibility of evidence at a criminal court hearing or trial.
Students often perceive the law as a complex of incomprehensible rules with
uncertain application in the workplace. In Criminal Evidence, ninth edition, when
an evidence principle is presented, an example or application to the real world of
law enforcement immediately follows. Relevant court decisions that affect the
admissibility of evidence are discussed in the text, but only to the extent
necessary to illustrate the rules. All program components fit into an integrated
learning system that helps students learn and apply important course concepts.

Acknowledgments
I had a lot of help in producing this ninth edition of Criminal Evidence. I would
like to thank the dean, faculty, and board of trustees of Southwestern Law School
for their generous support.

For their insightful reviews, criticisms, and suggestions, I would like to thank
these colleagues: Clare Armstrong-Seward, SUNY Morrisville; Amy Otley
Beckett, Ball State University; Robert Cerullo, Virginia Commonwealth
University; LaNina N. Cooke, Farmingdale State College; Gregg W. Etter Sr.,
University of Central Missouri; William Hendricks, Los Angeles Valley College;
Steve Phelps, Temple College; and Jenna Vandel, North Central Missouri
College.

Finally, and most important, I thank my wife, Melissa Grossan, who was truly my
partner in the production of this edition as well as being my loving companion in
life.

Page xiv

Changes Made for the Ninth Edition

Chapter 2

Noting the Supreme Court’s decision in Ramos v. Louisiana, 140 [Link]. 1390
(2020), holding that unanimous jury verdicts are required but have not been
applied retroactively to federal cases.

Chapter 9

Noting restrictions and bans on no-knock warrants in response to the death

of Breonna Taylor.

Chapter 13

Noting the judge in the sentencing trial of Nikolas Cruz for the killing of 17
people decided that the jury that will decide whether to apply the death
penalty can tour the scene of the crime to help them review the evidence
from the trial. The shootings took place at Marjory Stoneman Douglas High
School in Parkland, Florida, on February 14, 2018. Cruz plead guilty to 17
counts of murder and 17 counts of attempted murder on October 20.

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Page 2

Introduction to the Law of Evidence

and the Pretrial Process

Pool/Getty Images

Page 3

Chapter Outline

Introduction to the Rules of Evidence: Definition of Evidence

The Rules of Evidence

History of Trial by Jury

 Introduction to the Law of Evidence and the Pretrial Process

Development of the Rules of Evidence

Overview of the Court Process: The Pretrial Process

Participants in the Criminal Justice System

Law Enforcement Personnel

Prosecution and Defense

Courts

Correctional Institutions and Agencies

The Pretrial Court Process

Arrest

Bail

Plea Bargaining

Charging the Crime

Arraignment and Plea

Pretrial Motions

Pretrial Issues for the Law Enforcement Professional

Review and Application

Chapter Objectives

This chapter is an introduction to the law of evidence, the court process,

personnel, and pretrial process from the law enforcement professional’s
viewpoint. After reading this chapter you will be able to:

Explain what constitutes evidence.

State the objectives of the rules of evidence.

Name the most common version of evidence law in the United States.

Describe the three basic police functions.

Contrast the jobs of the prosecuting attorney and the defense attorney.

Describe the dual court system in the United States.

Define probable cause to arrest.

State the two alternative ways that a defendant can be formally charged with
a serious crime in the United States.
Page 4

Introduction to the Rules of

Evidence: Definition of Evidence
Most Americans are aware that there are rules that govern what a jury can
hear and see during the trial of a case in an American courtroom. These
rules are defined in what is called the law of evidence. In this text, we will
explore why there is a law that restricts what a jury may hear, the details of
the law, and its importance to the effective performance of the law
enforcement professional. Before exploring those questions, the reader
should know what constitutes evidence.

Most simply stated, evidence is information that people base decisions on.
In a legal sense, evidence is the information presented in court during a trial
that enables the judge and jury to decide a particular case. Technically,
evidence consists of testimony or physical items presented to the judge and
jury that they use to decide the truth of an assertion, the existence of a fact,
and ultimately the guilt or innocence of the accused in a criminal case.

In the American judicial system, a criminal defendant is entitled to have a

jury decide they and their guilt or innocence. The jury in all trials makes its
final decision based on what it believes the facts are that are involved in the
case. Evidence is the means by which those facts are proved or disproved. If
this definition were taken literally, then anything that sheds some light on
the truth of a fact in question should be revealed during the trial. Perhaps, if
the creators of the law trusted juries completely, that would be the way the
law of evidence worked. However, the creators of the law believed that
juries need some guidance and protection from undue manipulation by
competing attorneys during a trial. Therefore, the law limits what
constitutes admissible evidence.

Most law enforcement professionals use the term “evidence” with special
meaning, since so much of their efforts are concerned with ensuring that
physical evidence is usable at trial. So, although law enforcement
professionals know that testimony is important, they often refer to evidence
as the articles collected at a crime scene, on a suspect, or in the suspect’s car
or home that are connected to the crime, such as weapons, fruits of a crime,
or contraband (an object or material that is illegal to possess). Additionally,
evidence may mean those things discovered during investigation, such as
bloodstains, latent fingerprints, or plaster casts of shoe impressions in the
earth.

These items of evidence, once found, are transported to the station and
taken to the evidence room, where items are logged in and tagged. On the
evidence tag are the date of the booking, the incident report number, the
offense, the number of items (pieces), cash, from whom the evidence was
taken, the location, the owner, and the signature of the officer who booked
in the evidence. The property room officer signs in the evidence and the
date received and then deposits the evidence in a secure location known as
the evidence locker.

Evidence can be checked out (or released) from the evidence locker to the
defense attorney, or the prosecutor, or be sent to a laboratory as long as the
chain of custody remains intact and each piece of evidence is logged in and
out each time it is examined. The last entry in the log is usually the release
for the purpose of taking it to court. Some items, such as drugs, blood, or
other substances, must be carefully weighed or counted on the initial
booking date, weighed or counted again before being checked out, and
finally again when returned. Laboratory technicians must also weigh the
amount of any substance or material they use for testing purposes.

Page 5

Unless released for the purposes just described, items remain in the
evidence locker, free from illegal tampering, until they can be utilized as
exhibits and admitted into evidence during trial proceedings. Legally, these
articles found and retained do not become “evidence” until they are
introduced in court proceedings and become exhibits. However, if the law
enforcement officer does not take the proper precautions with these articles,
they cannot be introduced into evidence. This is so because, generally, 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. Chain of custody refers to how evidence is handled, and by whom,
accounting for its whereabouts and condition from the moment it is found
until the moment it is offered in evidence. It is the maintenance of custody
and control over an object to such a degree that the custodian can prove the
object is in the same condition as it originally was when custody was
obtained.

The testimony of anyone with personal knowledge pertaining to the case is

simply another form of evidence. A good definition of what constitutes
evidence is as follows: Evidence is any information about the facts of a
case, including tangible items, testimony, documents, photographs, or
recordings, which, when presented to the jury at trial, tends to prove or
disprove these facts.

Evidence may be classified in many different ways. There is a classification

of evidence as real or demonstrative. There are direct evidence and
circumstantial evidence. Evidence may be physical or intangible. Testimony
of experts often relates to scientific evidence. The differences between these
classifications of evidence is discussed in detail in Chapter 3.
The Rules of Evidence
“Rules of evidence,” or the “law of evidence,” as they are also known, are a
set of regulations that act as guidelines for judges, attorneys, and law
enforcement professionals who are involved in the trials of cases. These
guidelines determine how the trial is to be conducted, what persons may be
witnesses, the matters about which they can testify, the method by which
articles at a crime scene (physical evidence) are collected and preserved,
what is admissible, and what is inadmissible. These rules make for the
orderly conduct of the trial, promote efficiency, enhance the quality of
evidence, and ensure a fair trial. They are the product of many years of
judicial evolution and, more recently, legislative study. They were
developed by trial and error, through logic and sound judgment, following
the basic needs of society. They make for the orderly conduct of the trial
and ensure that evidence is properly presented at the trial. For example, the
rules prevent one spouse from testifying against another, except in certain
instances. The rules also generally forbid the use of hearsay as evidence and
prohibit the admission of illegally obtained evidence. Law enforcement
professionals should not look upon these rules as roadblocks in their efforts
to secure convictions. Instead, they must realize that the objective of these
rules is to ensure the integrity of all evidence, protect a defendant’s rights,
and ensure a fair trial.

FYI

There was a rather famous white Bronco involved in the 1994 O.J. Simpson
trial. One of the big problems for the prosecution was the chain of custody
of the Bronco. It was towed to a privately maintained storage lot and was
not properly secured. During the time the Bronco was there, an employee
broke into the vehicle and took some papers. Judge Ito, presiding at the trial
of O.J. Simpson, ruled that the bloodstains later discovered on the Bronco’s
front console were admissible, but the defense, in its attack on the
bloodstain evidence, made much of the fact that the Bronco was not
properly stored. A proper chain of custody would have reduced or
eliminated the impact of the defense’s argument.

Page 6

History of Trial by Jury

In the days before jury trials, proof of guilt or innocence was decided by
ordeal, battle, or compurgation. For the most part, trial by ordeal was an
appeal to the supernatural. An example of an ordeal used to determine guilt
or innocence consisted of forcing an accused person to remove a rock from
the bottom of a boiling pot of water. Any accused whose hands became
blistered was found guilty. If the hands did not blister, the accused was
acquitted. Acquittals under this system were, not surprisingly, rare.

Another kind of trial was introduced in England as a result of the Norman

Conquest in 1066. This was trial by battle or combat, also known as “wager
of battle.” In this system, the victim of a crime and the accused were forced
into hands-on combat. Even litigants in civil matters were often required to
ascertain who was right and who was wrong by this method of proof, with
the one who was right being the winner. It was assumed that God would
give victory to the one who was right. In criminal matters, if the accused
won, the accused was acquitted. Judicial combat became a prevalent way to
establish justice and continued to hold sway for a period of time, but
eventually it died out as a means of establishing right and wrong.

A more humane method of ascertaining guilt or innocence utilized from

time to time was trial by compurgation, also known as “wager of law.” In
this system, the accused would testify in they and their own behalf,
pleading innocence. The accused would be supported by helpers known as
“compurgators,” or oath helpers, often 12 in number. These supporters or
helpers would testify to the good character of the accused and particularly
they and their reputation for veracity. These persons would not necessarily
know anything about the facts of the case, but merely came forth to tell how
good the accused was. This system provided fertile grounds for perjury and
proved to be as ineffective at determining the truth as the ordeal and combat
methods. But it is considered to be the forerunner of our use of character
witnesses.

Later, a trial by jury system began to make its appearance. It was in no way
like the trial by jury as we know it. The first juries functioned by charging
the accused with a crime, acting in much the same capacity as a grand jury
of today. They served to substantiate an accusation, leaving the test of
innocence or guilt to be decided by some other means, such as trial by
ordeal, battle, or wager of law. As time passed and these methods lost favor,
the accusatory jury was given a dual function. Jury members would gather
information from the countryside, mostly hearsay (unsworn, out-of-court
statements), concerning the alleged crime and, later, would decide whether
the accused should be held for trial. If a trial were ultimately held, the same
jury would try the accused and render a verdict.
Page 7

Introduction to the Law of

Evidence and the Pretrial Process
Later, it was decided that the accusatory jury, known by then as the grand
jury, should not also try the accused. Therefore, a separate jury, known as
the petit jury, was selected for that function. This jury, like the accusatory
jury, relied upon evidence from the countryside. Later, this petit jury was
composed of individuals with personal knowledge about the case. As time
passed, witnesses who had information about the case were called to testify
before the jury. However, much of the testimony of the witnesses was based
upon hearsay information. Finally, around 1700, the trial by jury as we
know it today was becoming a reality, characterized by the swearing in of
witnesses and the right to cross-examine those witnesses. Additionally,
hearsay evidence began to disappear from jury trials. It was then that our
rules of evidence began to develop into what they are today.

Development of the Rules of Evidence

Rules of evidence in jury trials are designed to keep some information from
the jury even though it may be relevant. This is because sometimes relevant
information cannot be received by the jury without violating some principle
or policy that the law seeks to promote. For example, hearsay evidence (a
statement made by a person out of court) may be very relevant but is often
unreliable and untrustworthy. Hence, the hearsay rule bans the admission of
hearsay at a trial, except in specific, defined situations. Likewise, evidence
that has been obtained by a law enforcement officer in violation of a
suspect’s constitutional rights may be declared by the law to be
inadmissible in order to deter future misconduct by officers. (The rules
governing illegally seized evidence are discussed in detail in Chapter 9.)
Today, the rules of evidence in most jurisdictions are in the form of a statute
or code, meaning that they are laws enacted by a legislative body. These
evidence laws have supplanted the rules made by judges that evolved over
the centuries during the development of the jury system, though many may
be traced back to the judge-made rules. By far, the most common
codification of evidence law is the Federal Rules of Evidence (FRE). The
FRE apply in all federal courts throughout the United States and in the 43
states that have relied upon them as a model in adopting their own evidence
codes.

The evolution of the FRE began in 1942 when the American Law Institute
adopted the Model Code of Evidence. The drafting and advisory
committees for the Model Code included all the great figures in the field of
evidence. The Model Code was considered to be reformist and
controversial. Although the Model Code stimulated debate and
development of the law, it was not adopted by any jurisdiction. In 1954, the
Uniform Rules of Evidence, authorized by the Commissioners on Uniform
State Laws, were produced. While these rules were less radical, they were
adopted by only two states. Finally, in 1961, the United States Supreme
Court Chief Justice Earl Warren appointed a special committee to determine
the feasibility and desirability of a federal evidence code. The committee
came back with an affirmative response. An Advisory Committee on Rules
of Evidence was appointed to draft proposed rules and, in 1972, a revised
draft of proposed rules was promulgated by the Supreme Court as the
Federal Rules of Evidence, to be effective July 1, 1973. The rules were
referred to Congress, which enacted the rules into law, effective July 1,
1975. The rules have been subsequently amended by Congress but have
remained, for the most part, the same since enactment. Effective December
1, 2011, the entire FRE were “restyled,” meaning that the language of the
rules was simplified to render them more understandable. No substantive
changes were made by this amendment to the FRE.

Page 8

Forty-three state legislatures have adopted evidence codes patterned after

the FRE as of January 2013. Those states that have not adopted the rules,
however, are some with heavy population centers that account for a
substantial number of the state criminal cases generated in the United
States. States that have not yet adopted the rules include California,
Connecticut (commentators differ about the extent to which the Connecticut
Code of Evidence differs from the FRE)1, Kansas, Massachusetts, Missouri,
New York, and Virginia. Although these states follow rules of evidence
based on the same general principles that exist in all of Anglo-American
evidence law, their rules differ substantially in many respects from the FRE.
Therefore, the rules of evidence of each state must be consulted to learn
these differences. Moreover, even those states that have patterned their
evidence codes on the FRE may have some substantial variances from the
FRE.

The FRE, and their state counterparts, cover the entire field of judicial
procedure. These rules apply equally in civil and criminal matters. Because
the rules are complex, the line between what is admissible and what is
inadmissible is very fine. Therefore, these rules may create much confusion
for all who deal with them, including the law enforcement professional.
Further, it is sometimes difficult to abide by some of the rules, primarily
because an appellate court may invalidate or modify what was once
perfectly legal and proper. The rules themselves, much like judges’
interpretations of the rules, are constantly changing, many times becoming
more restrictive on the officer and they and their work.

Despite such problems, the rules of evidence enable officers to know during
the investigation what evidence will be admissible at a trial. It is the
purpose of this book to concentrate on those rules of evidence most
applicable to the work of the law enforcement professional and to help in
understanding them.
Overview of the Court Process: The
Pretrial Process
Figure 1–1 is a flow chart of the criminal justice system. It covers the entire
process from the observation or report of a crime through investigation, arrest,
prosecution, trial, sentencing, appeal, service of sentence, and release. The court
process from pretrial to appeal will be briefly described in this section. Later in
this chapter, the pretrial process will be described in greater detail. The trial
process will be described in greater detail in Chapter 2.

FIGURE 1–1 Overview of the criminal justice system.

Page 9

The process begins with an arrest based upon detection, investigation, and/or the
filing of a criminal complaint against a person. After arrest, the suspect is booked.
Booking is a formal processing of the arrested person by the police that involves
recording the arrest, fingerprinting, photographing, and inventorying all the
personal items taken from the suspect. The prosecutor will decide whether to
proceed with the charges against the defendant. If so, the accused will then make
an initial appearance in court, at which time the judge will review the charges to
determine the following:

1. that the crime is properly charged (i.e., that all required elements are
alleged);

2. that the right person has been named as the defendant;

3. that there is a reasonable basis for the charges;

4. whether the accused has or needs counsel; and

5. what bail or other conditions for release pending trial will be set.

The next step is a preliminary hearing, at which the judge considers the
prosecution’s case to decide whether there is probable cause to believe the
defendant committed the crimes charged. If so, the defendant is held to answer to
formal charges in the form of a grand jury indictment or an information.

After the grand jury indicts or the prosecutor files an information formally
charging the defendant, the accused appears in the trial court for arraignment and
plea. At the arraignment, the defendant can enter a plea of guilty, not guilty, or
nolo contendere (no contest), or they and their can stand mute. If the defendant
pleads guilty (or nolo contendere), they and their enters the plea and the judge
imposes the judgment of guilt upon the plea. At that time, or shortly after, the
judge will impose sentence upon the defendant.

If the defendant pleads not guilty or stands mute at the arraignment, the case will
be set for trial. Immediately after this, the lawyers will begin to file papers
(pretrial motions) to test legal issues (such as the legality of any searches or
seizures or change of venue) before trial, and they will exchange information
about the merits of the case. This exchange of information is called discovery and
is designed to lessen the element of surprise at trial. In most jurisdictions, there
are time limits within which such pretrial motions must be filed, often within ten
days to two weeks of arraignment. During this post-arraignment, pretrial period,
the law enforcement officer will continue to investigate the case, maintain the
evidence gathered, prepare further evidence when necessary, and assist the
prosecution in any other way appropriate to ensure that the trial proceeds in a
timely and effective manner.
At the trial, the chief law enforcement officer assigned to the case may be called
upon to assist the prosecutor by sitting at the counsel table in the courtroom.

At the very least, all officers who have personal knowledge of significant facts
may be called upon to testify on behalf of the prosecution. At the conclusion of
the trial, the jury or the judge will render a decision. If the judge or jury convicts
the defendant, the judge will set a date for sentencing.

Usually, the probation department will prepare a pre-sentence investigation report

(PSI), which recommends a sentence to the judge. The PSI is prepared by a
probation officer who investigates all aspects of the defendant’s life, seeking to
verify all information by public and private records. The recommendation for
sentencing contained in the PSI reflects the results of the PSI writer’s evaluation
of the defendant based upon the information gathered and reference to the
sentencing guidelines, if any, that apply in the jurisdiction. If the defendant
objects to the PSI, they and their can file an objection to the report, but there is no
right of appeal

Page 10

Page 11

The sentence is imposed after a hearing in court for that purpose. After
sentencing, the defendant has a set number of days, usually 30, within which to
issue a notice to appeal the conviction to the next highest court.
Page 12

Participants in the Criminal Justice

System
The criminal justice system consists of a number of distinct components. The
criminal justice system is composed of law enforcement, the prosecution and
defense, the courts, and corrections.

Law Enforcement Personnel

The main law enforcement agency in the United States is the police force.
Police departments in cities, sheriff departments in counties, state police, and
state bureaus of investigation constitute the largest number of law
enforcement officers in the country. The national law enforcement staff–
population ratio was 3.5 police officers and civilian personnel per thousand
citizens in 2019.2 This statistic does not include the enormous number of
private police who are employed on private property, such as office buildings,
apartment buildings, malls, and private residential communities. Private
police agencies are believed to be the largest employers of officers in the
United States and outnumber the public police, in terms of both the number of
agencies and the number of personnel.3 In 2017, it was estimated that there
were 1.1 million private security officers and 800,000 police officers in the
United States,4 and in 2008, it was estimated that there were 12,501 local
police departments, 3,063 sheriff departments, 1,733 special police (e.g., park
service or transit police), 50 state police agencies or highway patrols, and 638
other agencies, primarily county constable offices in Texas.5

The police are called upon to perform three basic functions as follows:

1. enforcing the law, which includes detecting and investigating crimes,

apprehending suspects, and assisting in the prosecution of offenders;
 2. maintaining public order, which includes activities such as crowd control
and crime prevention, as well as responding to domestic and civil
disturbances; and

3. providing various public services, such as responding to emergencies,

helping stranded motorists, and finding missing children.

Many police functions are carried out by low-ranking officers; for example,
crime prevention is usually carried out by patrol officers assigned to cruise an
area and watch for criminal activity. In the course of carrying out they and
their duties, the police officer exercises substantial discretion as to whether to
arrest a person suspected of criminal wrongdoing. It is impossible for the
police to arrest all the offenders they encounter. Often, an officer will make a
decision based on they and their interpretation of the spirit of the law rather
than the letter of the law. Police functions, such as crime detection and
investigation, are often performed by specialized squads consisting of older,
more experienced, and higher-ranking officers. Most police departments
spend the majority of their time in public services, such as traffic control,
crowd control, and emergency services.

Page 13

Nationally, the Federal Bureau of Investigation (FBI) is charged with the

responsibility of investigating federal law violations. There are a number of
other federal law enforcement agencies—notably the Drug Enforcement
Administration; the Bureau of Alcohol, Tobacco, and Firearms; ICE
(formerly the Customs Service and the Immigration and Naturalization
Service, now combined under Homeland Security); the United States
Marshals Service; the Border Patrol; the United States Park Service; the
Bureau of Postal Inspection; and the Secret Service.

As a component of the law enforcement function, all law enforcement

agencies provide assistance to the prosecuting attorneys in presenting
evidence in court to prosecute those arrested for criminal activities.
Therefore, the gathering of evidence, maintenance of evidence collected, and
preparation of evidence for presentation in a court of law are major activities
of the law enforcement agencies. In complicated cases, most law enforcement
agencies employ specially trained and educated personnel who are familiar
with such specialized fields as ballistics, fingerprint analysis, bloodstain
analysis, DNA analysis, and other areas utilizing scientific methodology.
Such specialists, often called criminalists or forensic investigators, have
gained prominence through high-profile trials and popular television
programs depicting crime scene investigations. In smaller departments, the
officers will do as much of the scientific work as their expertise allows, and
then seek help from other law enforcement agencies where necessary.

Depending on the type of case tried, other law enforcement personnel will be
involved in the criminal court process. They might include investigators other
than those employed by the police department, courtroom personnel (bailiffs,
marshals, or other guards), jail personnel, probation officers, and prison
personnel.

The staff of the courts, in addition to judges, includes courtroom clerks,

judges’ clerks, and bailiffs. Bailiffs are law enforcement personnel assigned
to keep order in the courtroom, attend to juries, oversee prisoners who are in
custody during their court appearances, and otherwise provide security in the
courtroom. In many jurisdictions, the bailiff is a deputy sheriff; in the federal
courts, the bailiffs are deputy United States Marshals.

Prosecution and Defense

The American criminal justice system is an adversarial one. In it, the accused
is presumed innocent until proven guilty and has a right to counsel even
before they and their is brought to court. The adversary process by which
guilt is determined is competitive, pitting the defense attorney and the
prosecuting attorney against each other. The battle lines between these
lawyers are often drawn based upon the conduct of the law enforcement
officers working on the case. For example, if the investigating officers do a
complete, solid job, the defense will find it difficult to argue the quality of the
evidence.

The chief prosecuting attorney in most state jurisdictions is a full-time,

public, county official, usually elected to office, with a staff of assistant
prosecuting attorneys below. Depending on the state, the chief prosecuting
attorney may be called the District Attorney, County Attorney, State’s
Attorney, or Prosecuting Attorney. In some states and in the federal system,
the prosecutor is an appointed official. In some rural areas, the office of the
prosecutor may be occupied by only one person, who may work only part-
time at the job. In many urban areas, the prosecutor’s office is very large. For
example, the Office of the District Attorney of Los Angeles County, which
employs about 1,000 attorneys (that number has been temporarily reduced
due to the pandemic), may be the largest law office in the country, and
certainly the largest prosecutorial office in the United States.6

Page 14

The chief prosecutor in the federal system is the Attorney General of the
United States. In each of the 94 federal districts, the chief prosecuting officer
is the United States Attorney for that geographic district. The Attorney
General and the United States Attorneys are all appointed by the President of
the United States. The assistant United States Attorneys are all federal
employees.

It is the job of the prosecutor to pursue a case developed by the police until
the case terminates by trial, guilty plea, or dismissal. The prosecutor must
decide whether to pursue a formal charge and, if so, what crime to charge.
The prosecutor is also responsible for conducting any plea negotiations,
deciding whether to dismiss charges, and trying the case.

Since the 1970s, the Constitution of the United States has required that a
defendant who is sentenced to any time in jail or prison is entitled to an
attorney, whether or not they and their can afford one. Also, any suspect who
is in custody and interrogated by the police while in custody is entitled to
warnings (Miranda warnings) about the right to remain silent and to have an
attorney present during interrogation, whether they and their can afford one.
Therefore, state and federal governments provide defense counsel to many
criminal suspects and defendants who cannot afford to hire a lawyer on their
own. This is accomplished through either the private bar (the local attorneys’
association) or a public defender system. Defense counsel must zealously
represent the criminal defendant from the point of interrogation through the
trial process, demanding that the prosecution respect the defendant’s rights,
treat the defendant fairly, and meet the burden of proof beyond a reasonable
doubt in the event the case goes to trial.

Courts
There is a dual judicial system in the United States: The federal and state
courts coexist. The federal court system applies nationwide, and federal
courts are located in each state. These courts coexist with individual state
court systems. Whether a defendant is tried in a federal or state court depends
on which court has jurisdiction over the case.

The jurisdiction of a court is the power or authority of the court to act with
respect to any case before it. 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. There
are currently federal trial courts in each state and 13 United States Courts of
Appeal, arranged by circuit (eleven numbered circuits, a District of Columbia
circuit, and one federal circuit—see Figure 1–2). 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); Puerto Rico; the District of
Columbia; and the United States Territories of Guam, the Virgin Islands, and
the Northern Mariana Islands. Each state has at least one United States
District Court, and some, such as New York and California, have as many as
four. District Courts are the trial courts of the federal system and have
original jurisdiction over cases charging defendants with violation of federal
criminal laws. For example, crimes involving such matters as possession and
sale of certain dangerous drugs, transportation of stolen property across state
lines, and robbery of federally insured banks will be tried in the federal courts
even though the crime was committed within a state or local geographical
area. In addition, crimes committed on federal lands or property are subject to
federal trial court jurisdiction.

Page 15

Court of
Districts Included in Circuit
Appeals
Federal
The United States
Circuit
District of
Columbia District of Columbia
Circuit
 Court of
Districts Included in Circuit
Appeals
First Maine, Massachusetts, New Hampshire, Rhode
Circuit Island, and Puerto Rico
Second
Connecticut, New York, and Vermont
Circuit
Third Delaware, New Jersey, Pennsylvania, and the Virgin
Circuit Islands
Fourth Maryland, North Carolina, South Carolina, Virginia,
Circuit and West Virginia
Fifth
Louisiana, Mississippi, and Texas
Circuit
Sixth
Kentucky, Michigan, Ohio, and Tennessee
Circuit
Seventh
Illinois, Indiana, and Wisconsin
Circuit
Eighth Arkansas, Iowa, Minnesota, Missouri, Nebraska,
Circuit North Dakota, and South Dakota
Alaska, Arizona, California, Hawaii, Idaho, Montana,
Ninth
Nevada, Oregon, Washington, Guam, and the
Circuit
Northern Mariana Islands
Tenth Colorado, Kansas, New Mexico, Oklahoma, Utah, and
Circuit Wyoming
Eleventh
Alabama, Florida, and Georgia
Circuit

FIGURE 1–2 United States Courts of Appeal.

Source: Administrative Office of the United States Courts.

Law enforcement officers will hear the term “venue” in connection with the
power of a court to hear a case. Venue refers to the neighborhood, place, or
county in which an act is declared to have been done or, in fact, happened,
thus defining the particular county or geographical area in which a court with
jurisdiction may hear and determine a case. Venue deals with locality of suit,
that is, with the question of which court, or courts, of those that possess
adequate personal and subject matter jurisdiction may hear a case. “Venue”
does not refer to jurisdiction at all. “Jurisdiction” of the court means the
inherent power to decide a case, whereas “venue” designates the particular
county or city in which a court with jurisdiction may hear and determine the
case. As such, while a defect in venue may be waived by the parties, lack of
jurisdiction may not.

Page 16

Each state also has its own court system. Most states’ structures are similar to
that of the federal courts—a trial court, an intermediate appellate court, and a
supreme court. (See Figure 1–3, showing the flow of cases in the North
Carolina State Court system.) In most states, the trial courts are organized by
county. Furthermore, in most states, the trial courts are divided into two
levels, an inferior and a superior court. The inferior court, often called the
municipal court or justice of the peace court, conducts preliminary hearings in
felony cases and trials in cases involving misdemeanors or petty offenses.
The superior court, sometimes called the circuit or district court, is a court of
general jurisdiction and has jurisdiction over felony trials.
 FIGURE 1–3 Flow of cases in the courts of North Carolina.

Source: North Carolina Judicial Branch. Routes of Appeal.

[Link] ([Link]

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Federal offenses are prosecuted in federal court and all state offenses are
prosecuted in state courts. Since about 1930, the United States Supreme Court
has been interpreting the Due Process Clause of the Fourteenth Amendment
to have incorporated all but two provisions of the Bill of Rights into
constitutional criminal procedural requirements that apply to the states:7

the right to trial by jury in cases involving serious offenses (Sixth

Amendment);

the right to assistance of counsel in any case in which a sentence of more

than six months in jail or prison is imposed (Sixth Amendment);

the privilege against self-incrimination, including a ban against comment

by the prosecution on the defendant’s failure to testify (Fifth
Amendment);

the presumption of innocence and requirement of proof beyond a

reasonable doubt (Fifth and Fourteenth Amendments’ Due Process
Clauses);

the freedom from unreasonable searches and seizures (Fourth

Amendment);

the right to silence and counsel during police interrogations (in aid of the
Fifth Amendment’s privilege against self-incrimination);

the right to compel witnesses’ attendance at trial, to confront them, and

to cross-examine them (Sixth Amendment);

the right to a speedy and public trial (Sixth Amendment);

 the freedom from double jeopardy (Fifth Amendment);

the freedom from cruel and unusual punishment (Eighth Amendment);

and

the freedom from racial and sexual discrimination in substantive and

procedural criminal law (Fourteenth Amendment).

Violation of any of these constitutional requirements can be the subject of

both state appeals and separate federal suits by prisoners, known as habeas
corpus claims (a form of legal action that seeks to free a prisoner from
unlawful confinement).

There is also a juvenile court system in each state. Criminal offenders under a
certain age, usually 18 or 16, are dealt with in juvenile courts by way of civil,
rather than criminal, proceedings. In cases that are serious, the juvenile may
be certified for prosecution as an adult, and the case will then be heard in
adult criminal court. Many youthful offenders who commit offenses that
would be crimes if committed by an adult are tried in the juvenile courts, the
purpose of which is to have specialized judges determine the youth’s
involvement in the offense and whether the child should receive rehabilitation
rather than punishment. Juvenile court procedure was intended to be more
informal than criminal courts, but the United States Supreme Court decisions
since the 1960s have imposed due process restrictions on the juvenile courts
that have caused juvenile proceedings to become more formal.

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Application Case

The case of In re Gault8 was the vehicle for the United States Supreme Court
to declare that a juvenile is a citizen and is entitled to the protections of the
Bill of Rights when juvenile court proceedings result in the child’s
deprivation of liberty. In the case, the 15-year-old child was committed as a
juvenile delinquent to a state industrial school for his involvement in making
lewd telephone calls. His commitment followed a hearing in the juvenile
court of Arizona, in which he and his parents claimed denial of notice of
charges, right to counsel, confrontation and cross-examination of witnesses,
and privilege against self-incrimination. The United States Supreme Court
agreed that the state had denied these basic constitutional rights and that even
state juvenile court proceedings must accord these rights to children in order
for due process to be met when a child’s liberty is at stake.

Correctional Institutions and Agencies

Jails are used to maintain custody of persons arrested pending prosecution
and to maintain custody of those sentenced to short periods of confinement.
On any given day, over 700,000 adults are being held in jail.9 The majority of
inmates are serving sentences for misdemeanor convictions of less than one
year. Most jails are operated by cities, counties, or both. Jails provide few
services, since most inmates are there temporarily. Usually, there are separate
jail facilities for women and juveniles.

All states maintain state penal institutions (prisons), consisting of state

penitentiaries, reformatories, and training facilities for juveniles. Often, the
institutions are graded according to level of security, ranging from high, or
maximum, to low, or minimum, security. As of March 2020, there were 1,833
state prison facilities in the United States,10 with a total population of 2.3
million and of 226,000 federal prisoners.11 Prison facilities are administered
by a separate correctional agency of the state or federal government.

Most court systems have a probation department attached to them. The

probation department investigates defendants prior to sentencing and
provides a pre-sentence investigation probation report to the court. There
were 4,357,700 (combination of probation and parole) people in the United
States as of year-end 2019. For probation only, there were 3,492,000 people
at year-end 2019.12 In addition, the probation department provides
supervision over those persons placed on probation after conviction.

Probation is the most frequent sentence imposed on first-time offenders.

Probationers are released back into the community and are required to obey
the rules and conditions set out in writing by their probation officers after
approval by the judge. Conditions include not being in possession of a
firearm, not frequenting places where drugs or alcohol are used, obeying all
city and state laws and ordinances, not associating with known criminal
offenders, attempting to find a job, avoiding the use of alcohol and drugs,
submitting to urinalysis, and reporting to a probation officer periodically. The
probation service is designed to provide counseling, but because of the
overwhelming case-load, probation officers usually are only able to engage in
nominal supervision. The sentencing judge gives probation and the judge can
take it away if the probationer continually disregards the rules and regulations
or is involved in another crime.

Page 19

If a person is sentenced to a term in prison but is released on parole prior to

the expiration of the full sentence, the person is said to be paroled under
supervision into the community. Supervision on parole is similar to probation
supervision, except that the parole service is an agency of the state
correctional system, rather than the court system. Violations of probation and
terms of parole lead to hearings that, in turn, may lead to warning,
incarceration, or re-incarceration.
The Pretrial Court Process
Arrest
The criminal process most often begins with an arrest. An officer can arrest an
individual only if probable cause exists. Probable cause deserves a thorough
discussion, which it receives in Chapter 9. At this point, it is enough to say that
probable cause to arrest exists when 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. An officer possessing probable
cause may arrest the suspect without a warrant, unless the suspect is in they and
their home.13 Alternatively, the officer can obtain a warrant from a judicial officer
authorizing arrest of the suspect at home if the officer can show sufficient
probable cause. Arrests made by police on patrol are made without a warrant
because of the need for a speedy response. Warrants are usually obtained during
an investigation of a crime.

The law enforcement officer has the responsibility for filing the criminal
complaint, whether in advance of an arrest in order to obtain an arrest warrant or
after an arrest is made without a warrant. 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 they and their
personal knowledge that support the complaint.
 An officer’s report may become the focus of intense pretrial scrutiny.

redhumv/E+/Getty Images

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Not all arrests result in prosecution. The question of whether to prosecute is not
made by the police officer. That decision is made by the prosecuting attorney and
the courts.

Bail
Most suspects are entitled to release after arrest and booking, either on the
accused’s own recognizance or on bail. In less serious cases, this release can be
approved at the station house. In more serious cases, the judge decides conditions
for release at the initial appearance. Often you will hear that a person is released
on they and their own recognizance. Recognizance is a promise to appear in
court. Bail is a deposit of cash, other property, or a bond guaranteeing that the
accused will appear in court. A bond is a written promise to pay the bail sum,
posted by a financially responsible person, usually a professional bondsman. Bail
is usually not very high, except in cases where it is shown that there is a risk that
the accused will fail to appear for trial or poses a threat to the community, as well
as in capital cases.

Plea Bargaining
Following arrest, either before or after charges have been made, counsel for the
accused and the prosecutor may meet and discuss the charges to be filed against
the accused and whether the accused will enter a plea of guilty or not guilty.
These discussions are called plea negotiations or plea bargaining. Plea
negotiations resolve over 90 percent of all prosecutions filed, both state and
federal (94 percent state and 97 percent federal).14 Plea negotiations may result in
a reduction of the original charge, which reduces the level of penalty that the
judge may impose upon the accused. Another result of plea negotiations is for the
prosecution to recommend a specific sentence to the court, usually involving a
lesser punishment than otherwise would be the case. In return, the defense enters
a plea of guilty, and the prosecution does not have to go through the time and
expense of taking the case to trial.

Charging the Crime

After arrest, the prosecutor will file a charge against the defendant if the
prosecutor is satisfied that the evidence is sufficient to support the charge and that
the case is worthy of prosecution. After the prosecutor files the charge, a judge
holds a preliminary hearing to determine whether probable cause exists. In some
jurisdictions, the preliminary hearing is minimal, providing only a summary
review of the sufficiency of the evidence. In other jurisdictions, the preliminary
hearing is very extensive, amounting to a mini-trial.

At the preliminary hearing, the prosecutor is likely to call one or more law
enforcement officers to the witness stand. The officer’s duty is to testify to those
facts known to the officer that prove that there is probable cause to believe that
the defendant committed a particular crime. At the preliminary hearing in most
jurisdictions, the question of probable cause is one that can be proven by evidence
in the form of hearsay. The issue is whether the information possessed by the
prosecution makes it probable that the defendant is the person who committed the
crime. Proof beyond a reasonable doubt is not required at the preliminary hearing.
On the other hand, the officer will be subjected to cross-examination by the
defense in an attempt to attack the prosecution’s case. At the very least, defense
counsel will try to get as much information as possible about the prosecution’s
case during the preliminary hearing.

Page 21

ON THE JOB

The law enforcement officer should be careful to give only that information
necessary to show probable cause at the preliminary hearing. Testimony by the
officer at the preliminary hearing makes a record that defense counsel can use
later at trial to try to trip up the officer. Moreover, further investigation from the
time of the preliminary hearing, sometimes called the prelim, to the time of the
trial may change the way the case is tried. Therefore, the officer should testify
only to the bare minimum to show probable cause. On the other hand, the officer
cannot be so tight-lipped as to fail to provide the necessary information to supply
probable cause.

If the prosecution makes its showing of probable cause, the defendant is required
to answer to the charge in the trial court. If the crime is a misdemeanor or petty
offense, the defendant will respond to the complaint filed by the prosecutor and
enter a plea of guilty or not guilty. If the plea is not guilty, the case will be
assigned to a court for trial. When the crime is a felony, the procedure is more
complex. The common law rule required that a person could be charged with a
felony only by a grand jury indictment.

A grand jury is a panel of persons chosen through strict court procedures to

review criminal investigation and, in some instances, to conduct criminal
investigations. Grand juries decide whether to charge crimes in the cases
presented to them or investigated by them, either by concluding that they believe
a jury would likely convict on the basis of the evidence presented or that there is
probable cause that the accused committed the alleged crime. Grand juries have
much wider latitude than petit juries as to what types of evidence they can
consider, such as hearsay. They meet in secret and are made up of 16 to 23
people. Neither the accused or counsel is allowed to be present in the grand jury
room so no objections can be made to questions asked or evidence presented. The
United States Supreme Court has ruled that states can charge using an
information rather than an indictment if they so choose. When a grand jury
charges a person with a crime, it does so by issuing an indictment.

Application Case
Early in the development of the criminal justice system in the United States, there
was some question whether a state proceeding to prosecute an accused by filing
an information following a preliminary hearing, rather than using a grand jury
indictment procedure, gave accused persons their required rights under the Fifth
Amendment. This question was answered in the 1883 case of Hurtado v.
California,15 in which the preliminary hearing, in lieu of a grand jury hearing,
was permitted. The United States Supreme Court held that the requirement of a
grand jury set forth in the Fifth Amendment applies to the federal government,
not the states. Furthermore, the Court held that the states did not need to proceed
by means of a grand jury indictment in order to satisfy constitutional fairness
requirements with respect to felony prosecutions. The Hurtado case stands as
good case law even today.

Page 22

In the federal system and in many states, felonies can still be prosecuted only by
indictment of a grand jury. In those jurisdictions, after the police investigate a
crime, the prosecutor presents the case to the grand jury. The grand jury hears
only the prosecutor’s case and decides whether to indict the accused. If the grand
jury votes to indict, then a bill of indictment, or true bill, is issued. If the grand
jury votes not to indict, a no bill is issued. Grand jury proceedings are secret.
Only the jurors, the prosecutor, and witnesses are present. The defendant, the
defense counsel, and the public cannot be present during grand jury proceedings.
When the defendant has been arrested on the street, the case can be presented to
the grand jury after arrest. In those jurisdictions that do not follow the grand jury
procedure, felony cases are prosecuted by the filing of a formal charge, an
information, by the prosecutor. The information is merely a piece of paper on
which the formal charge appears, and that is signed by the prosecutor.

Every state, except two and the District of Columbia, uses a grand jury to indict.
Both the District of Columbia and 23 states, i.e., Alabama, Alaska, Delaware,
Florida, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Mississippi,
Missouri, New Hampshire, New Jersey, New York, North Carolina, North
Dakota, Ohio, Rhode Island, South Carolina, Tennessee, Texas, Virginia, and
West Virginia, require the use of indictments to charge certain criminal offenses.
These states generally follow federal practice by requiring indictments for serious
crimes, while allowing other charging instruments to be used for minor felonies
and misdemeanors.
In 25 states, i.e., Arizona, Arkansas, California, Colorado, Georgia, Hawaii,
Idaho, Illinois, Indiana, Iowa, Kansas, Maryland, Michigan, Montana, Nebraska,
Nevada, New Mexico, Oklahoma, Oregon, South Dakota, Utah, Vermont,
Washington, Wisconsin, and Wyoming, the use of indictments is optional.
Prosecutors can choose an indictment or an information to charge any offense.

Arraignment and Plea

After the formal charges have been filed against a defendant, either by indictment
or information, the defendant appears in court at a proceeding called an
arraignment or arraignment and plea. This is the defendant’s appearance to
respond formally to the charges. The defendant will enter a plea of guilty, not
guilty, or, in some special cases, nolo contendere (no contest). If the defendant
pleads guilty, then the case will be set for sentencing. If the defendant pleads not
guilty, the case will be set for trial. There is usually nothing that the law
enforcement officer needs to do at the arraignment and plea. In fact, it is unlikely
that the prosecutor will even need the officer present.

Pretrial Motions
After arraignment and plea and before trial, the defense attorney will file certain
pretrial motions. The types of motions that will be filed include a motion to
suppress evidence based on claimed violations of the defendant’s constitutional
rights, a motion for severance of defendants or charges, a motion for discovery of
evidence or information, a motion for change of venue, a motion for a bill of
particulars, a motion to determine the defendant’s competency to stand trial, a
motion for appointment of experts, a motion to continue the trial, or a motion to
dismiss the charges.

Page 23

Often these motions will require that the trial court hold a hearing to decide them.
The officers involved in the case may be called upon to testify at those hearings.

Pretrial Issues for the Law Enforcement Professional

The prosecuting attorney will be concerned with some technical legal matters
during the time after arraignment and before trial. For example, the defendant has
a right to challenge the validity of the indictment or information by moving to
dismiss the charges. Any claims that the defendant’s constitutional rights have
been violated may be raised. Both the defense and the prosecution may ask the
trial judge to decide other legal questions, including what evidence will be
admissible at trial.

The law enforcement officer will be involved in numerous ways during the
pretrial period. First, the officer may continue investigating the case. In many
instances, the criminal investigation will continue up to the time of trial and
sometimes even during the trial itself.

All the officer’s reports will be of potential significance at trial. As a result, the
officer will want to organize, review, and summarize they and their own reports
and even become familiar with the reports of other officers.

The evidence that has been gathered must be maintained and prepared for trial by
either the police or criminalists involved in the investigation. Any new evidence
that has been identified should similarly be gathered and properly maintained.
Where an officer or a criminalist has been responsible for particular items of
evidence, they and their will be called upon at trial to lay the foundation for that
evidence’s admission and should be aware of the questions the prosecutor will ask
and the answers that must be given to lay that foundation. Officers, criminalists,
or forensic investigators will also testify as to tests that may have been done to
the evidence. This textbook will provide you with the knowledge you will need to
gather, prepare, and present evidence in a case in a proper and effective manner.
Review and Application
Summary
1. Evidence is any information about the facts of a case—including
tangible items, testimony, documents, photographs, and tapes—that,
when presented to the jury at trial, tends to prove or disprove these
facts.

2. The objectives of the rules of evidence are to know what is admissible

at a trial, ensure the integrity of all evidence, protect a defendant’s
rights, and ensure a fair trial.

Page 24

3. The most common version of evidence law in the United States is the
Federal Rules of Evidence (FRE).

4. The police are called upon to perform the following three basic
functions:

1. enforcing the law, which includes detecting and investigating

crimes, apprehending suspects, and assisting in the prosecution of
offenders;

2. maintaining public order, which includes activities such as crowd

control and crime prevention, as well as responding to domestic
and civil disturbances; and

3. providing various public services, such as responding to

emergencies, helping stranded motorists, and finding missing
children.

5. It is the job of the prosecutor to take a case from the police and pursue
it until the case terminates by trial, guilty plea, or dismissal. The
 prosecutor must decide whether to pursue a formal charge and, if so,
what crime to charge. Defense counsel must zealously represent the
criminal defendant from the point of interrogation through the trial
process, demanding that the prosecution respect the defendant’s rights,
treat the defendant fairly, and meet the burden of proof beyond a
reasonable doubt in the event the case goes to trial.

6. The federal court system applies nation-wide, and federal courts are
located in each state. Each state also has its own court system. The
federal courts coexist with individual state court systems. Whether a
defendant is tried in a federal or state court depends on which court has
jurisdiction over that case. Most states’ structures are similar to that of
the federal courts—a trial court, an intermediate appellate court, and a
supreme court.

7. Probable cause to arrest is when an officer possesses 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.

8. A defendant can be formally charged with a serious crime in the

United States either by indictment of a grand jury or by the filing of an
information by the prosecution after a preliminary hearing.

Key Terms
law of evidence 4

evidence 4

contraband 4

evidence locker 4

chain of custody 5

Federal Rules of Evidence (FRE) 7

booking 8
discovery 9

jurisdiction 14

venue 15

habeas corpus 17

jails 18

prisons 18

probation department 18

probation 18

paroled 19

parole service 19

probable cause to arrest 19

criminal complaint 19

affidavit 20

recognizance 20

bail 20

bond 20

preliminary hearing 20

grand jury 21

indictment 21

information 22
 arraignment and plea 22

Page 25

Questions for Review

1. What is evidence?

2. Describe the purpose of the rules of evidence.

3. What law of evidence exists in a majority of American jurisdictions?

4. List some common activities of police officers.

5. Describe what a prosecuting attorney does. How is this different from

the defense attorney’s job?

6. What courts are in the federal judicial system? How does this compare
with a typical state court system? What are the courts in your state?

7. When may a police officer arrest a person?

8. What is a grand jury indictment? When must it be used?

Workplace Applications
1. When an officer secures an item of physical evidence, they and their
must ensure a proper chain of custody of it, so that the item can be
introduced into evidence in court. Assume that an officer has obtained
a knife from the scene of a murder. What steps should the officer take
to maintain a chain of custody of the knife up to the time the officer
appears in court with the knife for the preliminary hearing?

2. Before a preliminary hearing is held in a criminal case, the law

enforcement officer may be approached in person or by telephone by
an attorney hired or appointed to represent the defendant. The attorney
will want to know what the officer’s testimony at the preliminary
 hearing will be. What do you think an officer should do when
contacted by defense counsel before the preliminary hearing?

Endnotes
1. See 2018 Connecticut Court Order 0411 (C.O. 0411).

2. Based on Table 74 (https//[Link]/crime-in-the-u.s/2019/crime-in-

the-u.s.-2019/topic-pages/tables/table-74 in [Link]
in-the-u.s/2019/crime-in-the-u.s.-2019/topic-pages/police-employee-
data (last visited 2/22/22).

3. See Niall McCarthy, Private Security Outnumbers the Police in Most

Countries [Infographic], Forbes
[Link]
security-outnumbers-the-police-in-most-countries-worldwide-
infographic/#3f74b015210f (last visited 4/28/18).

4. Id.

5. [Link]/content/pub/pdf/[Link] (last visited 01/21/13).

6. The Los Angeles County District Attorney reported in April 2018 that
it employed nearly 1,000 Deputy District Attorneys;
[Link] (last visited 4/28/18).

7. James J. Tomkovicz & Welsh S. White, Criminal Procedure:

Constitutional Constraints upon Investigation and Proof xxvi no.2 (8th
ed. 2017). Only the Fifth Amendment’s requirement of a grand jury
indictment for “capital or otherwise infamous crimes” and the Eighth
Amendment’s prohibition of “excessive bail” have not specifically
been incorporated.

8. In re Gault, 387 U.S. 1 (1967).

9. The most recent statistic, mid-year 2016, was that 740,700 inmates
were incarcerated in “the nation’s local jails.”
 [Link] (last visited
4/28/18).

10. Peter Wagner & Wendy Sawyer, Prison Policy Initiative, Mass
Incarceration: The Whole Pie,
[Link] (last visited
2/22/22).

11. [Link] (last visited

2/22/22).

12. [Link] (last visited 2/22/22).

13. Steagald v. United States, 451 U.S. 204 (1981).

14. Erica Goode, Stronger Hand for Judges in the “Bazaar” of Plea
Deals, New York Times (March 22, 2012),
[Link]
[Link] (last visited 4/28/18).

15. Hurtado v. California, 110 U.S. 516 (1883).

Design Element: ©Ingram Publishing

Page 26

The Trial Process

 Rich Legg/E+/Getty Images

Page 27

Chapter Outline

Introduction

Jury or Court Trial

Instructions by the Court to the Jury

The Jury

Qualifications of Jurors

Jury Selection, or Voir Dire

Function of the Jury

Jury Nullification

The Judge

Prosecuting Attorney’s Responsibility and the Burden of Proof Beyond a

Reasonable Doubt

Role of the Defense Attorney

Opening Statement

Making the Record

The Prosecution’s Case-in-Chief

Witness Requirements

Examination of Witnesses

Sequence of Witnesses
 Direct Examination

Objections

Cross-Examination

Redirect Examination

Re-Cross- and Subsequent Examinations

Close of Prosecution’s Case-in-Chief

Defense Presentation

Prosecution’s Rebuttal

Defense’s Surrebuttal

Closing Arguments

Instructions, or Charge, to the Jury

Deliberation and Verdict

Sentencing the Defendant

Review and Application

Chapter Objectives

In the prior chapter, we discussed the criminal process from arrest through
pretrial. In this chapter, an overview of a criminal trial is presented. After
reading this chapter you will be able to:

Describe the sequence of events in a typical criminal trial.

Contrast the level of proof required in a criminal case with the level of
proof required in a civil case.

Name the two types of challenges of a juror used during voir dire.
Describe the various duties of a judge in a criminal trial.

Cite a working definition of reasonable doubt.

Contrast the roles of the prosecuting attorney and defense attorney.

Describe the burden upon the prosecution in its case-in-chief.

List the five requirements for being a witness.

State the difference between the types of questions allowed on direct and
on cross-examination.

Identify the order of presentation of the closing argument.

Page 28

Introduction
Each arrest of a person formally accused of a crime must be followed by
some kind of prosecutorial action, including dismissal. If the accused enters
a plea of guilty to the charge for which he or she was arrested, the
prosecutorial procedure is comparatively simple, and the law enforcement
officer usually does not become involved. On the other hand, if the accused
enters a plea of not guilty, the trial that follows can become a very time-
consuming, complicated ordeal. The officer will play an important role in
the entire process. For this reason, before beginning a detailed discussion of
the law of evidence, a brief review of the structure and procedure of a trial
is helpful to gain a better understanding of the rules of evidence and their
application. Although the sequence of events in a criminal trial may vary
slightly from jurisdiction to jurisdiction, the sequence depicted in Figure 2–
1 is typical.
 FIGURE 2–1 Sequence of events in a typical criminal trial.

Some people think that a trial is a search for the truth and that juries
determine what actually happened in a case by looking at the evidence
presented in court. Other people believe that, since it is impossible to
determine what truly happened in a case when humans attempt to re-create
history through evidence, the true aim of a trial is to bring the competing
sides to a peaceful conclusion and to do justice. In either case, a trial is
society’s last-ditch effort to prevent the chaos that would result if
individuals tried to settle disputes themselves. Regardless of which
definition of purpose is used, the American justice system is set up as an
adversarial system. This means both sides are fighting to win. Winning a
trial means convincing the jury or a judge to believe one side’s evidence
rather than the other side’s.
Although an American trial is an adversarial proceeding, it provides a
forum and a process for telling the story of the case in a logical sequence,
so that the judge and jury may more clearly understand the case. Each
witness reveals his or her part in the story while testifying to personal
knowledge of the pertinent facts. However, since the law does not allow
every possible piece of evidence to be heard or seen by the jury, the trial is
controlled by a set of rules we refer to as the rules of evidence.

FYI

The problem of re-creating historical fact in a trial is the subject of the

classic 1950 Japanese film Rashomon. The film depicts a rape-murder and
the criminal’s subsequent trial in ninth-century Japan. The double crime is
depicted four times—from the viewpoints of the three participants (the
criminal, the woman he raped, and her husband) as well as from the
viewpoint of a woodcutter who witnessed the episode. Each “witness” gives
an account of the crime that increases the prestige of his or her conduct.
Continuously reconstructing the crime through the “witnesses,” the film
asks, “How can we ever know the truth?” Anyone who has ever participated
in a trial is probably aware of what has come to be known as the
“Rashomon syndrome,” in which witnesses to the same event present very
different accounts of it. The vagaries of human perception, memory, and
narrative ability are probably to blame for this fact of life.

Although there are vast differences between criminal and civil trials, there
is very little difference between the rules of evidence applicable in a
criminal case and those applicable in a civil matter. Perhaps the most
marked difference is the amount of proof necessary. In a criminal case, the
prosecution must present enough evidence to convince the jury of the
defendant’s guilt beyond a reasonable doubt. In a civil trial, only a
preponderance of the evidence must be presented on the part of one side or
the other to receive a favorable judgment.

Page 29

Proof beyond a reasonable doubt is not proof beyond all doubt, but it is the
highest level, or quantity, of proof that American law demands in any case.
Proof beyond a reasonable doubt is far more than 50 percent. On the other
hand, proof by a preponderance of the evidence—the quantity required to
win in a civil trial—is 50 percent plus a feather. An example of this
difference in quantity of proof is the difference in outcomes in the criminal
and civil trials of O.J. Simpson in connection with the murders of Nicole
Brown Simpson and Ronald Goldman. The jury in the criminal trial was not
convinced beyond a reasonable doubt of Mr. Simpson’s guilt in the murders
and, in October 1995, entered a verdict of acquittal. However, the jury in
the civil trial, in February 1997, believed, by a preponderance of the
evidence, that Mr. Simpson killed the two victims.
Jury or Court Trial
Instructions by the Court to the Jury
A criminal trial may be conducted in one of two ways. It may be what is
known as a “jury trial” or it may be a “court trial,” which is a trial by a
judge without a jury (also known as a “bench trial”). Most states permit a
defendant to waive a jury, but the right may not be absolute. In some states,
the prosecuting attorney may also be required to agree to this waiver in
order for the judge to try the case without a jury. In any event, a trial before
a judge alone is conducted in much the same manner as a trial before a jury.
The structure of the trial is the same, and the same rules of evidence apply.

Page 30

ON THE JOB

Chapter 9 will introduce the terms “reasonable suspicion,” “Terry

Doctrine,” and “probable cause.” These are the principles that allow an
officer to take action, to begin or continue an investigation, and to make an
arrest. For now, however, it is enough to know that the standards that allow
an officer to act are far below the standards required for “proof beyond a
reasonable doubt,” which a prosecutor will need for a successful conviction.
The law enforcement professional must help gather and prepare the
evidence for trial to ensure that the prosecutor can present enough evidence
to fill in the gap between the police officer’s standard of probable cause and
the prosecutor’s standard of proof beyond a reasonable doubt.

Application Case

The Sixth Amendment to the Constitution of the United States, as well as

provisions in the constitutions of the 50 states, guarantees to a defendant in
a criminal trial the right to be tried by an impartial jury. For many years
those provisions were interpreted to mean that the defendant must have a
jury trial. It was not until 1930, in the case of Patton v. United States,1 that
the Supreme Court of the United States gave a qualified approval for a
defendant to waive the jury and be tried by a judge alone.
The Jury
The common law rule and the rule in most states in this country call for a jury in a
criminal case consisting of 12 persons. Although in the early history of Europe
many of the inquisitory councils, also referred to as “juries,” consisted of 4 to
66 members, by the thirteenth century, 12 was the usual number found on an
inquisitory council. By the fourteenth century, the requirement of 12 members
had become more or less fixed. Thereafter, this number seemed to develop a
somewhat superstitious reverence.

When the colonists came to America, juries in England were composed of 12

persons, so it was only natural that juries in this country should also consist of 12,
yet the Sixth Amendment to the United States Constitution prescribes no set
number for a jury. The Amendment states only, “In all criminal prosecutions, the
accused shall enjoy the right of a speedy and public trial, by an impartial jury.”
Inasmuch as there appears to be no real significance to a jury being composed of
12 persons, some states have broken with tradition and have passed laws
permitting a jury in a criminal case to be composed of fewer than 12 members.
All states, however, require a jury of 12 for capital crimes. The United States
Supreme Court has held that a defendant is entitled to a trial by jury when
charged with a serious crime,2 distinguishing trials for “petty” offenses for which
an accused is not entitled to a jury trial. An offense is petty, for purposes of the
right to trial by jury, when the penalty is incarceration for a period of less than six
months.3 In Williams v. Florida,4 the Supreme Court upheld a conviction for a
nonpetty offense on a verdict by a six-member jury. However, a few years
thereafter, the Court struck down a state statute providing for five-member juries
in misdemeanor cases in Ballew v. Georgia.5 Taken together, the two cases set the
bottom limit for jurors at 6, permitting the states to designate juries of any
number between 6 and 12 for trials in which the punishment could exceed six
months in jail or prison (see Figure 2–2).

Page 31
 FIGURE 2–2 Number of jurors in criminal cases by state.

Another important factor involved in trial by jury is the requirement as to how the
jury votes. Historically, not only was the jury in a criminal case required to
consist of 12 persons, but the verdict reached by the panel was required to be
unanimous. In the aftermath of the Supreme Court decisions relating to jury size
just discussed, there also arose questions regarding the unanimity requirement. In
Johnson v. Louisiana6 and Apodaca v. Oregon,7 two cases decided together, the
Supreme Court upheld nonunanimous jury verdicts in criminal trials. All of the
juries involved in those cases were panels of 12 persons. A few years after these
two decisions, in Burch v. Louisiana,8 the Court clarified the issues by striking
down a statute allowing for nonunanimous verdicts of six-person juries for
nonpetty offenses. The result of all of these cases was that six-member juries
were permitted in serious crimes cases, but only if they reach unanimous verdicts.
Otherwise, juries of any size greater than six could reach nonunanimous verdicts.
Johnson and Apodaca were overruled by Ramos v. Louisiana9 wherein the Court
stated: “Today, Louisiana’s and Oregon’s laws are fully—and rightly—relegated
to the dustbin of history. And so, too, is Apodaca.”10 In sum, as a result of Ramos,
non-unanimous juries are now deemed unconstitutional; a state jury must be
unanimous to convict a criminal defendant of a serious offense. However, this
new rule—requiring unanimous jury verdicts—has been held NOT to apply
retroactively to federal cases. “This Court has repeatedly stated that a decision
announcing a new rule of criminal procedure ordinarily does not apply
retroactively on federal collateral review,”11 but “states remain free, if they
choose, to retroactively apply the jury-unanimity rule as a matter of state law in
post-conviction proceedings.”12

Page 32

Qualifications of Jurors
Although the qualifications of a trial juror may vary somewhat from state to state,
the general qualifications are quite similar. The person must be an adult, meaning
18 years of age or over. He or she must be a citizen of the United States and a
resident within the jurisdiction of the court involved. The prospective juror must
have a sufficient knowledge of the English language to understand the testimony
and to be able to communicate during the deliberation. In most states, the person
must have use of his or her natural faculties, meaning the ability to see, hear, and
talk, although in some jurisdictions in recent years, persons with disabilities have
been permitted to sit on juries with assistance.13 A person with a past felony
conviction will be disqualified from jury duty in most states. And, in most states,
jurors are selected from lists of registered voters.

FYI

As stated in the text, qualifications to be a juror generally include the ability to

see, hear, and talk. However, a number of states have adopted laws that permit
persons with disabilities to serve as jurors with the necessary assistance. Alaska’s
statute14 is illustrative:

1. A person is qualified to act as a juror if the person is

1. a citizen of the United States;

 2. a resident of the state;

3. at least 18 years of age;

4. of sound mind;

5. in possession of the person’s natural faculties; and

6. able to read or speak the English language.

2. A person is not disqualified from serving as a juror solely because of the loss
of hearing or sight in any degree or a disability that substantially impairs or
interferes with the person’s mobility.

3. The court shall provide, and pay the cost of services of, an interpreter or
reader when necessary to enable a person with impaired hearing or sight to
act as a juror.

Jury Selection, or Voir Dire

The process of selecting a jury varies from state to state and within the federal
system, but there is a general similarity overall. In most jurisdictions, jurors are
identified from voter registration lists and called to service in large groups for
periods varying from one day to several weeks. The pool of available jurors in a
courthouse on any given day provides the pool sent to any one courtroom. The
pool of jurors sent to a courtroom is called the venire. After that pool enters the
courtroom, the judge engages in a general introduction and the initial questioning
of the prospective jurors. Usually some jurors are excused from service as a result
of this general questioning (e.g., because of the financial hardship from sitting as
a juror). However, thereafter begins the more extensive process of questioning
prospective jurors to select the final panel, a process known as voir dire, which
roughly means “to speak the truth.”

Voir dire is conducted exclusively by the judge in the federal system and in many
states. That means that the attorneys for both sides may only suggest questions for
the judge to ask, although attorneys may address the court to challenge jurors for
any reason. In those jurisdictions that allow lawyers to conduct voir dire, either
partially or entirely, the lawyers pose the questions on voir dire directly to the
prospective jurors.
The purpose of voir dire is to eliminate from the jury any person who is incapable
of acting impartially. Any prospective juror found by the judge to be biased or
prejudiced against the parties because of the type of case, pretrial publicity, or any
other factor that may reasonably affect the prospective juror’s ability to be fair
may be excluded for cause on a motion, made by the prosecution, the defense, or
the judge. Such motions are known as challenges for cause. There is no limit to
the number of challenges for cause that may be made. Voir dire usually will also
produce information from which the attorneys will decide to exercise peremptory
challenges. A juror may be excluded based on a peremptory challenge for any
reason or no reason whatsoever. The only exception is that neither the
prosecution15 nor the defense16 may exercise a peremptory challenge in a
discriminatory manner that violates the Equal Protection Clause of the Fourteenth
Amendment to the Constitution of the United States, particularly with respect to
the race of the prospective juror. For example, in Batson v. Kentucky, the Supreme
Court held that the Equal Protection Clause forbids a prosecutor from challenging
potential jurors solely on account of their race, or on the assumption that Black
jurors as a group will be unable to impartially consider the state’s case against a
Black defendant.17 The attorney exercising a challenge merely asks the court to
exclude the prospective juror. The number of such challenges is severely limited,
usually 6 to 10 per side in most states in noncapital cases, 20 in capital cases.

Page 33

FYI

Certain occupations, such as law enforcement officers, may be excluded from

jury duty due to a conflict of interest. Other occupations (doctors, teachers,
attorneys) may be excused due to financial hardship or work schedule. Some
jurisdictions, including California, Colorado, Connecticut, and Massachusetts,
have adopted a system to make the jury more representative of the general
population by having a juror serve either one day or one trial. As a result of this
shortened requirement, most requests to be excused from jury duty are denied.
Financial hardship, work schedule, and the need to care for children, the sick, or
the elderly are no longer accepted as excuses. Teachers are required to postpone
their service, so that they may serve during school vacations.

In addition to the jurors selected for the panel, most states require the selection of
additional jurors, known as “alternates,” who hear all the evidence but do not
participate in deliberation unless one or more primary jurors are excused from
jury duty during the trial. The process for the selection of alternates follows the
same pattern as the process for the selection of regular jurors.

Function of the Jury

In a jury trial, the function of the jury is to determine the facts of the case and
render a verdict based on the law explained to them by the judge during jury
instructions. In other words, the jury interprets the evidence as it is presented and
tries to determine what happened. The jury’s ultimate goal in a criminal trial is to
ascertain whether the defendant is guilty beyond a reasonable doubt of the crime
as charged. This decision is made after the evidence has been submitted to the
jury by the prosecution and defense. A defendant in a criminal trial does not have
to testify or present any evidence, particularly if the defendant believes the
prosecution’s case is so weak that there is already a reasonable doubt about his or
her guilt. On the other hand, the defendant’s evidence may be offered in an effort
to overcome that presented by the prosecution. This is done in the hope that it will
create a doubt in the minds of the jurors, if that doubt is not already present. The
ultimate function of the jury in a criminal case is rendering a verdict of guilty or
not guilty.

Page 34

A jury can participate in determining a defendant’s sentence directly or indirectly.

In certain instances, in order for a defendant’s sentence to be enhanced above a
certain minimum, the prosecutor must allege the aggravating factors as part of the
charge against the defendant. The jury will decide whether these factors have
been proved at the same time they decide the guilt or innocence of the defendant.
In other instances, such as the circumstances described in Ring v. Arizona, after
the defendant is found guilty of a crime, the prosecution, in a separate phase,
presents additional evidence to the jury, so that it can determine whether
aggravating circumstances are present. Finally, in six states, the jury, not the
court, will pronounce the actual sentence to be received by the defendant in all or
some specific types of cases. Those states are Arkansas, Kentuckys, Missouri,
Oklahoma, Texas, and Virginia. In those six states, juries mete out sentences in
criminal cases generally or only in some types of cases specified by statute.
Under the pertinent United States Supreme Court decisions, juries must make
decisions on sentencing in death penalty cases, or cases in which enhancement
factors are part of the crime charged.
Application Case

In three successive cases, the United States Supreme Court has adopted and
applied the principle that the Sixth Amendment right to trial by jury requires that
certain facts, in addition to the finding of guilt, must be found by the jury, not the
judge. In Apprendi v. New Jersey,18 the Court held that, other than the fact of prior
conviction, any fact that increases the penalty for a crime beyond the statutory
maximum must be submitted to a jury and proved beyond a reasonable doubt.
The case of Ring v. Arizona19 was the vehicle for the United States Supreme
Court to decide that, if a jury finds a defendant guilty of a crime subject to the
death penalty, the Sixth Amendment principle stated in Apprendi requires that a
jury determine the presence or absence of the aggravating factors required in
order to impose the death penalty. Finally, in Blakely v. Washington,20 the Court
declared that a state’s sentencing guidelines allowing a trial judge to find the fact
necessary to trigger a sentence above the statutory maximum also violated the
Sixth Amendment principle stated in Apprendi.

Jury Nullification
The jury in a criminal trial in the United States renders an unappealable,
unassailable verdict of acquittal of an accused person. Although each juror takes
an oath to decide the case by applying the facts, as he or she finds them to be, to
the law as the judge states it, there is no redress if the jury violates this oath in
favor of a defendant in a criminal case. Should a jury acquit an accused for the
wrong reason, or for no reason at all, the law is powerless to correct the error.
Also, this means that if the jury does not wish to follow the law, for whatever
reason, there is no redress. This power is known as jury nullification because it is
a fact that the jury may thereby nullify the law. This power is little known and
rarely discussed. It is not lawful for a judge or lawyer to tell a jury of its power to
nullify.21 For example, if a person is on trial for drug possession involving
possession of marijuana for personal use, a jury might acquit because its members
do not believe such drug possession should be illegal even if the prosecution has
presented evidence to support all of the elements of the crime.

The federal Constitution, in the Fifth Amendment, contains a provision banning

twice putting a criminal accused in “jeopardy.” Under this provision, if a trial
results in a jury verdict of acquittal, the defendant cannot be retried. Thus, the
jury’s nullification power stems from this Double Jeopardy Clause of the Fifth
Amendment to the Constitution of the United States.
Page 35

Historically, the jury’s nullification power was used to vindicate injustices, where
the jury reacted to an unpopular law, or where strict application of the law might
have seemed unfair. Examples are the libel prosecutions in the American
Colonies by the British government for political protest and the imposition of
severe penalties for possession of small quantities of marijuana, as mentioned
earlier. In recent years, there has been a growing movement to inform jurors of
their power to nullify. However, most states still do not permit this notification.

Law enforcement professionals should be aware that it is possible for a jury to

render a verdict in favor of a defendant, using the power to nullify, even though
law enforcement did all they could to prepare and present a strong case. As jurors
become more aware of their power, such cases may be even more common.
The Judge
The judge’s principal responsibility is to see that the defendant in a criminal
case gets a fair trial. To accomplish this, the judge has many duties,
including deciding what law applies to the case; interpreting the law of the
case for the jury; deciding what evidence is and is not admissible; ruling on
objections made by the attorneys; determining the qualifications of
witnesses; protecting witnesses from overzealous cross-examinations;
ensuring that the trial proceeds efficiently and effectively; and, in most
states, in most instances, imposing sentence upon the defendant in a
criminal case. In some jurisdictions, the judge may comment on the
credibility of the witnesses and the weight of the evidence.

In a jury trial, the function of the judge is much like that of a referee. The
judge keeps order in the court and sees that the trial progresses properly and
smoothly. It is the judge’s duty to maintain control over the conduct of
those involved in a trial proceeding. To assist in this regard, the judge may
exercise the power of contempt. Contempt is the power of the court to
punish persons for failure to obey court orders or to coerce them into
obeying court orders. When a judge holds a person in contempt, the judge
fines or jails the person for criminal failures to obey the court. In cases of
civil contempt, the judge orders the person to jail until the person complies
with the judge’s order. A person held in civil contempt is said to “hold the
keys to the jail cell in his or her pocket”; if the person complies with the
court order, he or she will be released from custody.

When the trial is conducted without a jury, the judge acts in a dual capacity.
The judge does the same things he or she would do when presiding over a
jury trial, as well as performing the function of the jury in determining the
facts of the case. The judge therefore renders the verdict of guilt or
innocence.
Prosecuting Attorney’s Responsibility
and the Burden of Proof Beyond a
Reasonable Doubt
Once a trial begins, the duties of the law enforcement officer are, for the most
part, completed, except for testifying. By this time, the officers will have
collected physical evidence, interviewed the witnesses, and discussed the case in
detail with the prosecuting attorney. All that remains for the officers to do is to
testify in a forthright, unbiased, and intelligent manner. The progress of the trial is
largely the responsibility of the prosecuting attorney, who assumes the leading
role in the judicial process.

Page 36

Prosecutors, however, have many responsibilities long before the trial begins.
Their duty is to prosecute the guilty and to see that the innocent are protected. In
the landmark case of Gideon v. Wainwright,22 where the Supreme Court of the
United States applied the Sixth Amendment right to counsel in felony cases to the
states through the Fourteenth Amendment’s Due Process Clause, the Court noted
that prosecutors “are everywhere deemed essential to protect the public’s interest
in an orderly society.” In this capacity, prosecutors must decide which criminal
charges should be prosecuted and which should be dismissed in the interests of
justice. The prosecutor has broad power to decide whether to pursue any given
case. The public has the right to demand that the prosecutor use that power wisely
and impartially.

When the decision to prosecute is reached, the prosecutor must decide which
witnesses will be used and what evidence will be presented. It is not necessary
that every witness who has some knowledge of the case be called upon to testify.
Neither is it required that every bit of physical evidence be presented. The only
requirement is that a sufficient number of witnesses be called and sufficient
evidence be presented to convince the jury that the accused committed the crime.
In deciding what evidence to use, the prosecutor will consider past experience
with the particular charge involved, knowledge of the personality of the judge
who will be hearing the case, and the potential dramatics of the situation as the
trial progresses. In addition, the prosecutor has an obligation to disclose to the
defense attorney any evidence that could be used to aid the defense. Any evidence
that tends to prove the innocence of an accused is called exculpatory evidence.
The prosecution has a duty to disclose exculpatory evidence to the defense when
requested. Failure to do so, regardless of the good or bad faith of the prosecution,
violates the defendant’s due process rights. The United States Supreme Court
announced this doctrine in the 1963 case of Brady v. Maryland.23 In many states,
reciprocal pretrial exchange of information is required and is called pretrial
discovery.

The United States Supreme Court has held that the Constitution makes it the
responsibility of the prosecutor to prove every element of a charged offense
beyond a “reasonable doubt.” The Court has also held that the “Constitution does
not require any particular form of words be used” in instructing the jury on the
definition of reasonable doubt.24 The trial judge may choose not to define
reasonable doubt, but, if he or she does choose to define the term, then “taken as a
whole the instructions [must] correctly conve[y] the concept of reasonable doubt
to the jury.”25 The concept is that proof beyond a reasonable doubt is a high
standard of proof, but not one that leaves no doubt at all. In practical terms, the
Court has approved a definition that indicates that reasonable doubt is a doubt
based upon reason: that which would make a reasonable person hesitate to act in
connection with important affairs of life.

ON THE JOB

Law enforcement professionals do not exist in a vacuum. They work long hours
in different shifts. This tends to limit their social contacts to people involved in
the criminal justice system. It is not uncommon for friendships to develop among
law enforcement professionals, including police, criminalists, court bailiffs, court
clerks, prosecutors, defense attorneys, and even judges. The trick is to manage
such relationships responsibly. When called to testify in court, law enforcement
professionals must remember that, when they are in court, the court official, who
may be a weekend fishing buddy or shopping companion, is now involved in
running a trial that will greatly affect the defendant’s life. Therefore, the law
enforcement professional must treat the judge, and other court professionals, with
the formal respect they deserve whenever they are in the courthouse or in other
professional settings. It will enhance both personal and professional respect from
other participants.

Page 37
A number of standards of proof are used in legal definitions. This is a good time
to refer to the spectrum of those standards of proof. The first chapter presented
the concept of probable cause—that level of proof a police officer needs to arrest
a suspect and a prosecutor needs to show in court to formally charge an accused.
The standard of proof in a civil case, preponderance of the evidence, was
discussed earlier in this chapter. There are a few other levels of proof that the law
enforcement officer should be familiar with: mere hunch, reasonable suspicion,
prima facie, and clear and convincing. A graphical spectrum of these levels of
proof is presented in Figure 2–3. Each of these terms will be more fully described
at an appropriate point in the text. For now, the focus is on the fact that the
requirement of proof beyond a reasonable doubt is the highest level of proof that
the law demands.

FIGURE 2–3 Spectrum of levels of proof.

The Supreme Court has addressed the problem of defining reasonable doubt for
the jury in a criminal case. The Court disapproved of one definition and approved
two others. In the 1990 case of Cage v. Louisiana,26 the Court said that using the
words “substantial” and “grave,” when coupled with the term “moral certainty,”
could be understood by a reasonable juror to allow the juror to find an accused
guilty “on a degree of proof below that required by the Due Process Clause.”27

In 1994, in Victor v. Nebraska,28 the Court considered definitions of reasonable

doubt from two states, California and Nebraska. The Court held that both
definitions were constitutional. Both definitions contained the language relating
to “moral certainty.” The Court sufficiently questioned use of the term “moral
certainty” in modern times to cause the California Supreme Court to consent to
the elimination of the phrase from its approved definition thereafter.29 Thus, after
the Victor case, the approved definition of reasonable doubt in California was as
follows:30

Page 38

It is not a mere possible doubt; because everything relating to human affairs

is open to some possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration of all the evidence,
leaves the minds of the jurors in that condition that they cannot say they feel
an abiding conviction of the truth of the charge.

Likewise, the Nebraska courts have altered the definition of reasonable doubt
upheld in Victor, even though the United States Supreme Court did not reject the
definition used in the case, as set forth below. The instruction reads in its
entirety:31

“Reasonable doubt” is such a doubt as would cause a reasonable and prudent

person, in one of the graver and more important transactions of life, to pause
and hesitate before taking the represented facts as true and relying and acting
thereon. It is such a doubt as will not permit you, after full, fair, and
impartial consideration of all the evidence, to have an abiding conviction, to
a moral certainty, of the guilt of the accused. At the same time, absolute or
mathematical certainty is not required. You may be convinced of the truth of
a fact beyond a reasonable doubt and yet be fully aware that possibly you
may be mistaken. You may find an accused guilty upon the strong
probabilities of the case, provided such probabilities are strong enough to
exclude any doubt of his guilt that is reasonable. A reasonable doubt is an
actual and substantial doubt arising from the evidence, from the facts or
circumstances shown by the evidence, or from the lack of evidence on the
part of the state, as distinguished from a doubt arising from mere possibility,
from bare imagination, or from fanciful conjecture.
Role of the Defense Attorney
Among other guarantees, the Sixth Amendment to the Constitution of the
United States provides that “in all criminal prosecutions, the accused shall
… have the assistance of counsel for his defense.” An accused is entitled to
assistance of counsel for his or her defense in all instances, except where
incarceration is not possible; if the accused cannot afford an attorney, one
must be provided. An accused is entitled to the assistance of counsel even
before trial—as early as at the time of a suspect’s arrest.

Because an accused is entitled to counsel at every stage of a criminal

proceeding—from focused investigation or arrest through trial—the defense
attorney is an important figure in the administration of criminal justice.
Defense counsel’s primary function is to make certain that all the rights of
the accused are properly protected. Counsel will make certain that the
charge against the defendant is a valid one and that there was sufficient
probable cause to arrest the defendant or conduct any search or seizure.
Defense counsel will conduct pretrial investigation and discovery and
otherwise prepare for trial. The defense attorney will advise the accused
concerning statements that he or she may or may not make. At the time of
the trial, the defense attorney will cross-examine the prosecution witnesses
and present any defense necessary under the circumstances. Along with the
judge, defense counsel has the responsibility of seeing that the defendant
receives a fair trial.

Page 39

Most important, the defense attorney has an ethical obligation to zealously

represent the accused. In our system, every accused person is entitled to full
representation and a fair trial. And, though an accused has been brought to
trial on the belief by a law enforcement officer, prosecutor, and grand jury
or judge that there is probable cause to believe the accused is guilty, the
accused enters the courtroom presumed to be innocent; and this
presumption continues until the accused is proven guilty beyond a
reasonable doubt at trial. It is the job of the defense attorney to demand that
the state prove its case under the law with legally obtained evidence.

FYI

In 1995, Colin Ferguson was on trial for the inexplicable murder of six train
passengers and the wounding of 19 others (referred to in the press as the
“Long Island Railroad Massacre”). Ferguson insisted on representing
himself. The judge allowed Ferguson to do so but required that he have
lawyers present to advise him. The trial was bizarre, referred to by some
observers as “theater of the absurd.”

One of the many things this trial demonstrated was the questionable
wisdom of self-representation. During the trial, one witness asserted, in
response to Ferguson’s questioning in which he referred to himself in the
third person as the defendant or Mr. Ferguson, “I saw you shoot me!” The
jury found Ferguson guilty in a matter of hours. The judge sentenced him to
six consecutive terms of 25 years to life for the murders and 50 years for 19
counts of attempted murder, two weapons charges, and a charge of reckless
endangerment. One advantage of self-representation is that the defendant is
permitted to address the jury without being subjected to cross-examination
by the prosecuting attorney.

As previously stated, an accused is entitled to counsel in all serious cases;

this right may not be denied. However, an accused may waive the right to
the assistance of counsel and be entitled to represent himself or herself.
However, the judge must be satisfied that the decision is an intelligent and
informed one.
Opening Statement
If the trial is heard by a jury, the judge will read, or have read, to the jury the
indictment or information for which the defendant has been brought to trial.
When the jury is sworn, that is the point at which jeopardy attaches, i.e., if the
accused is later found to be not guilty, he or she cannot be tried again for the same
crime. Whether the trial is heard by a jury or by the judge alone, the prosecution
will present its case first. After the charge has been read to the jury, the trial
proper begins with the prosecution’s opening statement. The opening statement is
a summary of how the prosecution expects its evidence to prove the defendant
guilty beyond a reasonable doubt. The prosecution’s opening statement is usually
followed by the defense’s opening statement, though this right can be reserved
and exercised later in the trial. Defense’s opening statement is a summary of how
there is a reasonable doubt.

Colin Ferguson unsuccessfully defended himself in his 1995 trial for

the shooting deaths of six people and the wounding of 19 others on a
Long Island Railroad commuter train.
 Rick Maiman/Sygma/Getty Images

Page 40

An opening statement is not an argument but rather a road map of each side’s
case-in-chief. The case-in-chief is that portion of the case consisting of the main
evidence of either the prosecution or the defense. An opening statement is often
given in the form of a story, but it is a story in which the attorney promises to
support the narrative with positive proof. The attorney often discusses what the
evidence will show. The beginning, ending, and sequencing of the story will be
constructed in accordance with the lawyer’s theory and theme of the case. So, as
long as it is clear that the attorney will support the “story” with evidence, this
form of opening statement is perfectly acceptable and usually is most effective.

FYI

The importance of a lawyer’s need to fulfill the promises made in the opening
statement was illustrated in the trial of Scott Peterson for the murder of his wife,
Laci, and their unborn child. The prosecutor asserted in his opening statement that
Peterson had lied to investigators about the day he (Peterson) said he last saw his
wife alive because he claimed they watched a Martha Stewart show about
meringue. Investigators decided the meringue show had run the day before. To
counter this claim, in his opening statement, defense attorney Mark Geragos
played a clip of the show in question in which Martha and her guest talked about
making meringue cookies. Mr. Geragos played the tape a second time, saying,
“I played it twice, just in case the Modesto D.A. couldn’t hear it.” This was an
effective way to cast doubt on the prosecutor’s claim that Peterson had lied in this
instance. It made no difference, however; he was convicted anyway.

Although the defendant’s attorney usually makes an opening statement

immediately after the prosecution’s opening statement, he or she can reserve the
right to do so after the conclusion of the prosecution’s case-in-chief. There are
benefits and drawbacks to either choice, and, although most defense attorneys
will give an opening statement immediately rather than reserving it, the decision
is purely tactical.

After opening statements, the prosecution has the burden of going forward with
its case-in-chief, presenting witnesses and exhibits. The prosecution proceeds by
direct examination with its witnesses. The witnesses are then subject to cross-
examination by the defense. After the prosecution has concluded its case, the
defense will present its case-in-chief, with the prosecution cross-examining
defense witnesses. After both the prosecution and defense have rested their cases,
the trial will conclude with closing arguments by both sides, the judge’s jury
instructions, and, finally, jury deliberation.

FYI

Some people attribute the acquittal of O.J. Simpson to his attorney, Johnny
Cochran’s, brilliant theme and theory of the case: “If it doesn’t fit, you must
acquit.” This referred both to the physical evidence of the glove, which the
prosecutor was unable to prove fit O.J., and to the message that, if all the pieces
of evidence put forth by the prosecution don’t add up, the jury must acquit the
accused.
Making The Record
All felony trials and most other criminal trials today are trials of record. This
means that the proceedings are recorded verbatim to preserve a record for appeal
in order to preserve the rights of the accused in the event of a conviction.
Historically, the usual method of recording was through a court reporter, a person
specially trained and equipped to take down verbatim the official record of the
proceedings in a court.

Page 41

O.J. Simpson holds up his hands before the jury after putting on a new
pair of gloves similar to the infamous “bloody gloves.”

VINCE BUCCI/Getty Images

Today, of course, recording may be done mechanically, utilizing sophisticated

audio and video equipment. Regardless of the way in which the proceedings are
preserved, the fact that a record is made affects the manner in which people act in
the courtroom.

Bearing in mind the need to make the record, all communication in court must be
audible. Gestures, ambiguous sounds, and inaudible responses cannot be recorded
effectively by a stenographer and may be misleading even if mechanically
recorded. Only one person may speak at a time, and an individual cannot speak so
rapidly as to make it difficult to be understood. In short, the participants in a trial
must remain consciously aware that what they are saying and doing must satisfy
the requirements for making the record.

ON THE JOB

In giving testimony, the law enforcement professional must speak clearly and
audibly, so that the court reporter (whether human or electronic) can accurately
record what is said. A witness must not start to answer a question until it has been
completed. If the witness refers to charts, graphs, or certain documents, he or she
should discuss with the prosecutor beforehand the procedure for marking the
exhibits and referring to them. The witness should not use hand gestures. When
the witness is being cross-examined, he or she should wait until the cross-
examining attorney completes the question and the prosecuting attorney has had
the opportunity to object before answering.
The Prosecution’s Case-in-Chief
As previously mentioned, a party to a trial presents the thrust of its case in
what is known as the case-in-chief. This is particularly significant in a
criminal case with respect to the prosecution. Because of the principles of
the presumption of innocence, the burden of proof, and corpus delicti (all of
which are discussed at length in the next chapter), the prosecution is
required to fulfill certain requirements during the case-in-chief, or the court
will enter a judgment against the prosecution.

Page 42

MYTH FACT
One who is convicted of
murder cannot be retried for For two criminal charges to qualify as
the crime if he or she kills the “same offense” and come within the
the same person again. In double jeopardy ban, some very
1999 the story line of the technical legal conditions must be
movie Double Jeopardy satisfied. Resolution of the legal issues
was based on the posed by the movie boils down to a
assumption that the double question of whether the relevant conduct
jeopardy rule offers a wife for purposes of applying the double
the rare opportunity to kill jeopardy rule is the death of the husband,
her contemptible husband in which case she has already been
free from fear of criminal prosecuted and punished for the crime,
consequences. The wife or the wife’s act of killing him, in which
(Ashley Judd) is in prison, case she hasn’t. The argument that the
having been convicted of staged and actual murders are the same
murdering her husband offense is based on the seemingly
(Bruce Greenwood). He is flawless logic that no one can be killed
not dead but has framed her more than once, no matter how
for the murder. After she despicable he or she might be and
learns this, she is told by a therefore, at most, one crime of murder
fellow prisoner that because
of double jeopardy she can
kill him now and cannot be
MYTH FACT
punished for it. can be committed on any single
individual. But there is an equally
compelling argument on the other side of
the question that focuses on the criminal
act as the relevant fact for double
jeopardy purposes. For now at least, the
legal issue that is the premise for the
movie is unresolved.

But there is one point on which legal

scholars agree. Under the dual
sovereignty doctrine, the second actual
killing is not the same offense as the first
staged murder if the two crimes are
committed in different jurisdictions.
Thus, if the wife makes the mistake of
killing the husband in a state other than
the one where she was convicted, the
Double Jeopardy Clause will not protect
her against prosecution for his murder in
the second state.

In short, the prosecution has a burden during its case-in-chief to introduce

sufficient evidence to establish that a crime was committed by someone (the
corpus delicti) and that the accused probably did it. This amount of proof is
referred to as a prima facie case. At this point, the prosecution must have
established the jurisdiction of the court, the corpus delicti of the specific
offense charged, and facts that could lead a reasonable juror to believe that
the accused is the responsible person. After the conclusion of the
prosecution’s case-in-chief, the prosecution announces that it rests its case.
At this time, the defense attorney will ask the trial judge for a judgment of
acquittal—a judicial decision on whether the prosecution has satisfied its
burden during the presentation of its case-in-chief. That burden is the
presentation of evidence on each and every element of the crime(s) charged
sufficient for a jury to conclude beyond a reasonable doubt that the accused
is guilty. If the motion for judgment of acquittal is granted, the case is over.
Furthermore, because of the constitutional ban against double jeopardy,
there can be no appeal from a judge’s entry of a judgment of acquittal in a
jury trial.
Page 43

Witness Requirements
Immediately after the defense attorney makes an opening statement or
reserves the right to do so later, the prosecution calls its first witness. Before
the witness takes the seat to testify (frequently referred to as the witness
stand), an oath is administered to the witness by the judge, the bailiff, or
some other officer of the court (in Georgia, the attorney calling the witness
administers the oath). The oath consists of words to this effect: “I do
solemnly swear (or affirm) to tell the truth and nothing but the truth, so help
me God.” The reference to God is deleted in the case of a person wishing to
affirm rather than swear. In order to qualify as a witness, a person must be
able to understand what it means to tell the truth, so that he or she can take
the oath (or affirm) that the truth will be told. In most states, serving as a
witness also requires that the individual possess personal knowledge of
some perceived relevant facts about the case, be able to remember those
facts, and be able to communicate them. All other matters relating to being
a witness, under modern law, go to the weight of the witness’s testimony,
not the witness’s qualifications. This matter is discussed in more detail in
Chapter 4.
Examination of Witnesses
Sequence of Witnesses
The sequence in which witnesses are called to testify will depend largely
upon the kind of case involved and how the evidence may best be presented
in a logical order. It is not necessary that the witnesses be called in the
sequence in which the events of a case took place. For example, if a
defendant were being tried on a charge of having burglarized a place of
business, the order of calling the witnesses could vary greatly. The first
witness could be the owner of the burglarized business. Through the
testimony of this witness, the first elements of the charge would be
established, i.e., that there was an illegal entry and articles were taken
without permission. Or the prosecuting attorney could find it more
convenient to place the arresting officer on the stand first. Through the
testimony of the officer, it could be shown that the defendant was arrested
near the scene of the burglary and had in his possession articles taken from
the place of business that had been burglarized. Such testimony alone would
be a strong indication of the guilt of the accused.

Page 44

Earlier, in the discussion of the opening statement, the use of story telling
was described. Just as the story structure in the opening statement depends
upon the theory and theme of the case, so may the attorney’s selection of
the order of witness presentation. Not all stories are best told in
chronological order. Moreover, the story may begin at a different point,
depending on one point of view as compared with another. Therefore, a
lawyer may decide to call witnesses in some order other than chronological
to better present the lawyer’s theory and theme of the case.

Following is an example of how witness sequencing can vary, depending on

the theory and theme of the case. In this example case, the defendant is
charged with first-degree murder in the killing of an acquaintance at a
neighborhood tavern. The victim was a well-known bully in the
neighborhood, and the accused is a mild-mannered person. Two weeks
before the homicide, the victim and the defendant were involved in a verbal
dispute in the tavern. The victim accused the defendant of “stealing” some
change from the bar counter while the victim was in the restroom. During
the dispute, the victim threatened the accused. On the night of the alleged
murder, the victim followed the defendant out of the bar onto the street and
accosted him. The defendant pulled out a gun and shot the victim as he
came toward the defendant. The defendant claims self-defense. The
prosecution might well decide to begin the story of this crime with the
episode at the bar two weeks before the killing. To that end, the opening
statement would begin with the fight two weeks earlier. The first witnesses
called by the prosecution would be those who were present at the tavern
two weeks before the shooting.

ON THE JOB

Typically, an officer works a forty-hour week, either five eight-hour shifts

or four ten-hour shifts, plus whatever overtime or part-time security work is
available. The officer may also go to college or have training classes, and
family life and personal activities place additional constraints on an
officer’s time. So, when the inevitable subpoenas start arriving for the
arrests and citations the officer has made and issued, it is important that the
officer plan ahead.

As soon as the officer is served with a subpoena, he or she should fill out a
request to “Records” to generate a copy of any relevant report, since this
could take several days, depending on the department’s backlog. A trip to
the evidence locker is also good insurance; it reassures the officer that the
evidence is easily located and lets the evidence custodian know that the
officer will soon be needing that piece of evidence. The officer should
always keep in mind the need to maintain the proper chain of custody. The
officer should make sure that all lab work is complete and that the reports
are in order, since forensics is always backlogged. It is vitally important that
the officer not wait until the day of trial to discover that a pivotal piece of
evidence is missing or that a report appears unprofessional and negligent.
The officer does not want to impress the judge and prosecution unfavorably
by being ill-prepared. This is also true for other law enforcement
professionals. Once served with a subpoena, the criminalist, the crime scene
investigator, the laboratory technician, and all other professionals should
order all pertinent reports and verify the whereabouts of any evidence
needed for court. Just as in the case of the enforcement officer, maintaining
the chain of custody of evidence is crucial for it to be admissible in court.

Page 45

Other factors may also influence the sequencing of witnesses. The work
schedules of witnesses coupled with the normal delays of a trial may
require an attorney to call a working person who is also a witness out of the
sequence the attorney originally planned for the best strategic effect. This
may be the case particularly with law enforcement officers, experts, and
other professionals whose schedules are less flexible than those of other
witnesses.

Direct Examination
The questioning of a witness by the side who calls the witness is known as
direct examination. Direct examination usually begins by asking the witness
his or her name, address, and occupation. Even though this information may
be well known to all in the courtroom, it is necessary for the court record of
the case. After these preliminary background questions are completed, the
general questioning of the witness concerning the specific facts of the case
begins.

During the direct examination, whether by the prosecution or the defense,

the attorney must form the question in such a manner that the desired
answer is not indicated. If the desired answer is stated or suggested in the
question, the question is known as a leading question. An example of a
leading question is “The defendant had a gun in his hand, didn’t he?” It is
obvious from the wording of this question that the attorney wants the
witness to answer in the affirmative. On direct examination, this question
would be objected to by the opposing side, and the judge would sustain the
objection because of the leading nature of the question. A question about
the gun in the defendant’s hand that would not be considered leading might
be “Did the defendant have anything in his hand?” Leading questions are
generally not allowed during direct examination and are discussed at greater
length in Chapter 5.

Tradition, custom, and the rules of evidence limit the use of leading
questions. They are reserved principally for use on cross-examination. The
generally required method of questioning on direct examination is the use
of nonleading questions, which elicit information from a witness in the
witness’s own words. On the other hand, the law prohibits a witness from
telling all he or she knows in narrative form. Such a testimony could lead to
information coming before the jury that it should not hear and might lead to
a prolonged trial, as talkative witnesses tend to ramble. Instead, as a
compromise between leading a witness and asking for a narrative, lawyers
are expected to ask questions calling for short responses that move the story
along.

The forms of questions on direct and cross-examination are significant for

all witnesses, including the law enforcement professional. The law
enforcement professional, as a principal witness for the prosecution, should
be prepared to testify on direct examination in a clear, straightforward
manner. He or she should give full answers but not ramble in a narrative
fashion. On cross-examination, the law enforcement professional should be
direct and forthcoming but should only answer the question asked. A full
discussion relating to the conduct of witnesses appears in the final chapter
of this book.

Objections
During the questioning of any witness, including the direct examination of
the prosecution’s witnesses, the opposing attorney will interject evidentiary
objections. These objections may be based on any one of a number of
grounds, according to the law. Some common grounds are leading,
irrelevant, hearsay, calls for opinion, and speculation. Objections may be
well founded or may be made principally for effect. For example, an
attorney may make an objection to break the concentration of the examining
attorney or jury, or merely to interrupt if the opposing counsel is “on a roll.”
Groundless objections are frowned upon by the court and the jury alike, so,
although some objections for psychological effect will be tolerated, most
lawyers are careful not to use this tactic excessively.

Page 46

ON THE JOB

When testifying and there is an objection, a law enforcement professional

(any witness, for that matter) should not answer unless the judge overrules
the objection. If the judge sustains the objection, the witness should not
answer the question at all.

In any event, when either side makes an objection, the witness must remain
silent until the judge has made a ruling, or decision, on the objection.
Rulings on objections are stated by the judge. The judge either sustains the
objection or overrules it. If the objection is sustained, or upheld, the witness
must not answer the question. If the judge overrules, or denies, the
objection, the witness may answer.

If the witness inadvertently answers the question before the judge can make
the ruling and the objection is sustained, or if the sustained objection is
made after the witness has already answered, the judge will order the
answer stricken from the record and admonish the jury to disregard the
answer. The law expects the jury to do so. However, it is practically
impossible to erase a thought completely once it has been planted in the
minds of jurors. Thus, if the information that the jury heard is too damaging
or too prejudicial to the defendant, the judge may declare a mistrial. In that
case, the trial is stopped and must be started again with a different jury. Of
course, such a situation is very time-consuming and costly. If the
information inadvertently comes before the jury because a witness persisted
in answering a question before the judge ruled on an objection, and that
witness is a law enforcement professional, there may be serious
repercussions, for such a professional is expected to abide by court
procedure.

Note that the phrase “stricken from the record” does not mean that the
offending question or answer is actually removed from the court reporter’s
record. It is a term of art used to indicate only that the question or answer
was not acceptable to the court. Figure 2–4 sets forth the most common
grounds of objection and explains each type.

Table Summary: The table presents the most common grounds of

objection and describes each type of objection. The first column
of the table lists the common grounds of objection. The second
column lists the descriptions of objection. The third column lists
the corresponding federal rules of evidence. The fourth column
lists the chapter of the book that discusses the common grounds
of objection.
Federal Chapter
Objection Description of Objection Rule of of the
Evidence Book
The question calls for an
answer that does not make a
Irrelevant 401–402 2
fact of consequence to the
case more or less likely.
Witness lacks competence
Incompetent 601 3
under state law.
The evidence is an
inadmissible out-of-court
Hearsay statement, offered for the truth 801–806 6
of what is asserted in the
statement.
The preliminary facts or
901, 803,
Insufficient conditions necessary to admit 10, 11,
804
foundation the evidence have not been 12
especially
shown.
Improper Either the content or manner
607–613 3, 5
impeachment of impeachment is improper.
Resubmission of evidence to
prove what has already been
Cumulative 403 2
shown by other evidence
before.
 Federal Chapter
Objection Description of Objection Rule of of the
Evidence Book
An attempt to prove the
Not the best 1001–
content of a writing by 10, 12
evidence 1007
secondary evidence.
Cross-
examination The subject matter of cross-
exceeds the examination is limited to the
611 1, 5
scope of scope of the subject matter of
direct direct.
examination
Redirect
examination The subject matter of the
beyond the redirect examination is limited
611 1, 5
scope of the to the scope of the subject
cross- matter of cross.
examination
The question calls for
Privileged
information that is protected 501 3
material
by privilege.
Ambiguous
and/or The question cannot be
unintelligible understood.
question
The question contains more
than one part, so that the
Compound witness either cannot tell
question which part to answer or may
inadvertently answer one part
without meaning to do so.

FIGURE 2–4 Common objections to evidence.

Cross-Examination
After the direct examination is completed, the opposing side has the right to
cross-examine the witness. The right of cross-examination is considered
essential for the discovery of truth during a trial. As one highly regarded
evidence scholar has stated, cross-examination “is the greatest legal engine
ever invented for the discovery of the truth.”32 So, after direct examination
is completed, the opposing attorney may, as desired, cross-examine the
witness. In most instances, the attorney will cross-examine for several
reasons. First, the cross-examiner may hope to shake the witness’s story and
thereby cause the jury to give the testimony less weight. Second, the cross-
examiner may try to show that the witness is prejudiced and consequently
may have testified incorrectly or untruthfully. Third, the cross-examiner
may try to show that the witness has made prior inconsistent statements and
thus should not be believed by the jury. In any event, cross-examination is
frequently a trying experience for the witness involved.

Page 47

During direct examination, the attorney usually does not try to belittle or
embarrass the witness, but upon cross-examination, just the opposite is true.
Frequently, the law enforcement officer will be the most damaging witness
against an accused. Consequently, in many instances, the officer should
expect rigorous cross-examination. Chapter 15 of this book discusses the
subject of how to testify effectively.

Page 48

ON THE JOB

Daily logs and reports are routinely admitted as evidence at a trial. They are
read by judges, prosecutors, defense attorneys, and the jury and are
sometimes made public. Officers often consider writing a report a burden,
but good report writing should be thought of as insurance. A well-written
report will make an officer’s time on the witness stand go much more
smoothly. Well-written reports will also help keep criminals behind bars,
whereas sloppy report writing might let a criminal walk free. Officers
should be attentive to grammar and spelling in their report writing, since the
reports will be seen and read by judges, lawyers, and jurors who may form
an opinion about the officer based on the reports.

If an officer throws away his or her notes after writing a report, defense
counsel may try to discredit the officer and the prosecution’s case by
suggesting that the officer is trying to hide something. A proper response to
such a charge is that “everything pertinent from the notes is contained in the
report.”

Although leading questions are prohibited during direct examination, they

are the norm during cross-examination. Remember that a leading question
is one in which the examiner tries to put words in the mouth of the witness.
Therefore, on cross-examination, the witness must listen carefully to ensure
that the facts are not distorted by the examining lawyer’s leading questions.

ON THE JOB

On the witness stand, a law enforcement professional should be very careful

to be courteous, especially on cross-examination. No matter how aggressive
or hostile the defense attorney may be, the witness should remain cool,
answer “yes” or “no” if possible, and say, “I don’t know” or “I do not
recall,” if that is the case. The professional should never guess or assume. If
he or she does not understand the question or finds it confusing, the witness
should ask defense counsel to clarify the question. The law enforcement
professional should avoid humor, and under no circumstances should the
witness lose his or her temper or become emotional.

Redirect Examination
Upon conclusion of cross-examination by the opposing attorney, the direct
examiner may further question the witness. This further questioning is
known as redirect examination and is only for the limited purpose of
rebuttal or clarification of information brought out during cross-
examination. New matters are not allowed to be brought out for the first
time on redirect examination.
Re-Cross- and Subsequent Examinations
After a redirect examination has been conducted, the judge may give
permission to the opposing attorney to ask questions limited to further
clarification of statements made by the witness during the redirect
examination. This questioning is referred to as re-cross-examination.
Likewise, after re-cross-examination, and thereafter, in rotation, the
opposing attorneys may, at the court’s discretion, be permitted further
questioning. None of these further steps is required, and any questioning
past redirect examination is purely within the discretion of the trial judge.

Page 49

Close of Prosecution’s Case-in-Chief

After all witnesses have been called by the prosecution and all other
evidence has been tendered to support the charge against the accused in a
criminal case, the prosecutor announces that the “prosecution rests its case.”
As explained earlier, this is an important point because, in most states, lack
of adequate proof by the prosecution cannot be corrected after this
announcement.
Defense Presentation
After the prosecution rests, the defense will give its opening statement, if
the attorney did not do so after the prosecution’s opening statement. Then
the defense will present its side of the case in an effort to raise a reasonable
doubt of the accused’s guilt. Because of the presumption of innocence, the
defendant does not have to present any evidence at all, for the burden of
proving the defendant guilty rests entirely on the shoulders of the
prosecution, without any help from the accused. Frequently, the defendant
will have no evidence to present and will rest at this point. But, in many
cases, the defendant will present some evidence, either alibi, character,
justification, or excuse evidence. Or the defendant may testify and deny
guilt or support some affirmative defense, such as alibi, self-defense, or
insanity. An affirmative defense is a reason under the law that allows a
defendant to claim to be exonerated, one that the defendant must
affirmatively claim and prove.

The same steps that were used in presenting the prosecution’s case-in-chief
are followed in the defendant’s case-in-chief, should the defendant choose
to present a case. At the conclusion of the defendant’s case, the defense
again may make a motion for judgment of acquittal, asking the judge one
more time to acquit due to insufficient evidence presented by the
prosecution. At this point, in ruling on the motion, the judge may consider
the effect of any evidence introduced by the defendant as well as the
prosecution.
Prosecution’s Rebuttal
Upon completion of the presentation of all the evidence on behalf of the
defendant, the prosecution has the right to call additional witnesses or to
present new evidence only to overcome new matters brought out during the
defendant’s case. Some matters may only be addressed by the prosecution
after first being raised by the defense. For example, if a defendant
introduces evidence to show that he or she acted in self-defense because of
fear resulting from the victim’s reputation for violence, the prosecution may
rebut that claim by showing that the defendant had previously assaulted the
victim. Unless and until the defense introduces the claim of self-defense at
trial, the rules of evidence usually prohibit the prosecution from presenting
evidence that the defendant committed a prior crime of assault upon the
victim. Therefore, the prosecution may introduce the evidence of the
defendant’s prior assault upon the victim only after the defendant asserts the
self-defense claim.

Also, the defense may introduce evidence, such as newly discovered

evidence, that is not anticipated by the prosecution but that opens the door
for rebuttal evidence. For example, the defendant may have discovered an
alibi witness too late in the trial process to notify the prosecution during the
prosecution’s case-in-chief. In such an event, the prosecution will be
permitted to introduce in rebuttal such evidence as it may have uncovered
in the interim.

Page 50

In the absence of one of these reasons for the prosecution to introduce

rebuttal evidence, the presentation of evidence will end with the defendant’s
case. Because of the heavy burden placed upon the prosecution to prove its
case beyond a reasonable doubt, as well as the burden of the presumption of
innocence, it is traditional for the prosecution to speak first and last. The
prosecution’s right to put on a rebuttal case, however, cannot be used as an
excuse to have the last word by restating its case-in-chief. Thus, although
not a rare occurrence, a rebuttal case by the prosecution is not to be
expected in every case. In the event the prosecution offers rebuttal
evidence, the defense may be permitted to introduce evidence in response,
called surrebuttal or rejoinder.
Defense’s Surrebuttal
If the prosecution properly introduces new evidence as part of its rebuttal of
the defense, the court may allow the defense to introduce surrebuttal
evidence. This is the same as rebuttal evidence, except that it is offered by
the defense and is limited to the subject matter raised by the prosecution’s
rebuttal evidence.
Closing Arguments
After both sides have presented their cases, the prosecutor and the defense
attorney may make closing, or final, arguments to the jury. These
arguments, unlike opening statements (in which the attorneys present a road
map of the case), are an opportunity for the lawyers to summarize the case
in an overt attempt to persuade the jury to take their view of the evidence.
Attorneys are allowed to appeal to the jury based on any inferences that
may rationally be drawn from the evidence.

The prosecution opens this segment of the trial with its beginning final
argument, followed by the defense’s final summation. The prosecution then
goes last with its ending closing argument, sometimes referred to as
rebuttal. In some states, the prosecution’s final argument is severely
restricted. However, in most states, the final summation of the prosecution
is extensive. In any event, in light of the heavy burden upon the
prosecution, the prosecuting attorney is awarded the last word in argument.
Instructions, or Charge, to the Jury
When the attorneys for both sides have finished their closing arguments, the
judge reads the instructions to the jury. Sometimes the judge instructs the
jury before closing arguments; in rarer instances, the judge may even
instruct the jury at the beginning of the trial. Judge Ito did this in the O.J.
Simpson criminal trial, but he also instructed the jury again at the end of the
case. Moreover, during the course of the trial, the judge may find it
necessary to relate some rule of law to the jury as evidence is presented.

Jury instructions consist of an interpretation of the substantive and

procedural law that applies to the case. The purpose of these instructions is
to assist and guide the jury in its review of the evidence in order that they
may arrive at a verdict.

Page 51

Many states and the federal government have published instructions for
general purposes and for every kind of civil and criminal case. These
instructions are preapproved by legislatures and courts and are known as
“pattern” instructions. Both prosecution and defense attorneys have the
opportunity to designate which pattern instructions they wish to be given to
the jury. In addition, either side may propose special instructions that
arguably apply to the special circumstances of the case. The judge considers
both sides’ requested instructions at a conference before giving the
instructions to the jury.
Deliberation and Verdict
After the judge has instructed the jury, the jury will retire to the jury room.
There, the jury will weigh the evidence presented during trial in light of the
judge’s instructions and attempt to arrive at a verdict. This review of the
evidence is referred to as jury deliberation. To prevent the possibility of any
outside influence affecting the jury’s verdict, the jury’s deliberative process
is kept secret. Some states require a sequestered jury (a jury kept securely
removed from any outside influence) during deliberations. In some
extremely sensitive cases, the trial court may decide to sequester a jury for
the entire trial. One of the most famous such instances was the trial of O.J.
Simpson. But that case was unusual; juries are rarely sequestered for an
entire trial.

The period of time that a jury may take to deliberate varies considerably. It
may be only a matter of minutes, or it may be several days. The seriousness
of the charge and the length of the trial often will determine the time the
jury takes to deliberate. In most states, the jury must reach a unanimous
verdict in a criminal trial. In such cases, deliberation time may grow
lengthy because of differences of opinion among the jurors. If the jurors are
having difficulty reaching a unanimous verdict, most judges will do
everything possible to encourage them to reach a decision. If the
jurisdiction requires a unanimous verdict and the jury cannot reach one, the
result is known as a hung jury. When a jury is hung, the judge must declare
a mistrial and discharge the jury. If there is to be a retrial, it must be before
an entirely new jury.

If, on the other hand, the jury arrives at a verdict, the jury returns to the
courtroom and the verdict is announced. In most states, after the verdict has
been announced in open court, the jury’s function is over and the judge will
dismiss the jurors. If the verdict is one of acquittal, the defendant is
immediately released from custody and may not be tried again on the same
charge in accordance with the Double Jeopardy Clause of the Fifth
Amendment to the Constitution of the United States.
Sentencing the Defendant
If the jury’s verdict is guilty, the defendant must be sentenced. Sentencing
procedure varies widely among the states and between the states and the
federal government. In most states and the federal system, the judge
imposes sentence. The judge’s sentencing options are dictated by
sentencing guidelines for particular crimes. Two decisions by the United
States Supreme Court in 2004 and 2005 seriously question the validity of
sentencing guidelines in both the state and federal systems. In Blakely v.
Washington,33 the sentencing judge found a fact to exist that the judge then
used to impose an aggravated sentence in Blakely’s trial. The Supreme
Court held that this violated the defendant’s Sixth Amendment right to trial
by jury. Then, in United States v. Booker,34 a majority of the Court held that
Blakely applies to the federal sentencing guidelines, but a different majority
held that the guidelines are still viable as advisory. In short, the mandatory
sentencing systems contemplated by state and federal sentencing guidelines
are now seriously impaired. It remains to be seen how much discretion in
sentencing will be restored to trial judges.

Page 52

If prescribed sentencing guidelines do not exist in a particular jurisdiction,

the judge will impose the sentence within statutory limits and alternatives.
In a few states, the jury imposes the sentence.

In any case involving the possibility of the death penalty, the sentencing
phase is usually separated from the verdict of guilt or innocence phase. In
many jurisdictions, the decision whether to impose the death penalty is
made by a jury. Either it is made by a completely new jury or, if the same
jury decides the penalty, it is decided in a separate trial or phase of the trial.
Also, in some states, the jury recommends to the judge whether to impose
the death penalty, but the judge makes the final decision.
Review and Application
Summary
1. Following is the sequence of events in a criminal trial: (1) final pretrial
matters and motions; (2) jury selection (voir dire); (3) jury sworn; (4)
opening statement by prosecution; (5) defense opening statement or
reservation; (6) prosecution’s case-in-chief; (7) defense opening
statement, if reserved; (8) defense’s case-in-chief; (9) rebuttal, if any,
by prosecution; (10) surrebuttal, if any, by defense; (11) prosecution’s
opening argument (first closing); (12) defense’s final summation
(closing); (13) prosecution’s final summation; (14) instructions by the
court to the jury; (15) jury deliberation; and (16) jury verdict.

2. The level of proof required in a criminal case is beyond a reasonable

doubt. In contrast, the level of proof required in a civil case is a
preponderance of the evidence.

3. Challenges for cause and peremptory challenges may be used during

voir dire.

4. The duties of a judge in a criminal trial include deciding what law

applies to the case; interpreting the law of the case for the jury;
deciding what evidence is and is not admissible; ruling on objections
made by the attorneys; determining the qualifications of witnesses;
protecting witnesses from overzealous cross-examinations; ensuring
that the trial proceeds efficiently and effectively; and, in most states, in
most instances, imposing sentence upon the defendant.

5. A working definition of reasonable doubt is a doubt based upon

reason: that which would make a reasonable person hesitate to act in
connection with important affairs of life.

Page 53
 6. The principal role of the prosecuting attorney is deciding which
criminal charges should be prosecuted and which should be dismissed
in the interests of justice. The principal function of the defense
attorney is to make certain that all of the rights of the accused are
properly protected.

7. In its case-in-chief, the prosecution must introduce evidence sufficient

to establish that a crime was committed by someone (the corpus
delicti) and that the defendant was probably the person responsible (a
prima facie case). If the prosecution has done this, the court will deny
the defendant’s motion for judgment of acquittal made at the close of
the prosecution’s case-in-chief.

8. The five requirements for being a witness are to (1) understand the
duty to tell the truth; (2) take an oath (or affirm) that the truth will be
told; (3) possess personal knowledge of perceived facts relevant to the
case; (4) remember those facts; and (5) communicate those facts.

9. On direct examination, only non-leading questions are allowed. On

cross-examination, leading questions are permitted.

10. In closing argument, the prosecutor gives a beginning closing

argument, followed by the defense’s final summation, followed by the
prosecutor’s final summation.

Key Terms
venire 32

voir dire 32

challenges for cause 32

peremptory challenge 33

jury nullification 34

contempt 35
exculpatory evidence 36

pretrial discovery 36

reasonable doubt 37

opening statement 40

case-in-chief 40

corpus delicti 42

prima facie case 42

judgment of acquittal 43

witness stand 43

direct examination 45

leading question 45

evidentiary objections 45

rulings on objections 46

cross-examination 46

redirect examination 48

re-cross-examination 48

affirmative defense 49

jury deliberation 51

sequestered jury 51

hung jury 51
Questions for Review
1. List the sequence of events in a typical criminal trial.

2. How much proof is necessary for a criminal trial? How is this different
from the amount of proof necessary in a civil trial?

3. What is the difference between a jury trial and a bench trial?

4. How many people are required for a jury in a criminal case?

5. List six common qualifications for jurors.

6. What is meant by voir dire?

7. What are the two main functions of a jury?

8. What is jury nullification, and why is this power little known?

9. What are the main duties of the judge in a criminal trial?

10. Who has the main responsibility for the progress of a trial? Explain.

Page 54

Thinking Critically About Evidence

1. Why do you think a defendant might prefer to have a jury trial? A
bench trial? What are the pros and cons of each?

2. The jury has the power to ignore the law, as well as the facts and
evidence presented to it during trial, when reaching its verdict. Write a
paragraph stating why you think that the jury has this power, especially
when our legal system demands that officers, attorneys, and judges
follow the law.

Workplace Applications
 1. It is a freezing Saturday night in December. You spot a car driving the
speed limit with its windows rolled all the way down. You know that
drunk drivers frequently use the cold air to help keep themselves
awake while driving. The driver’s eyes are fixed on the road, and he
has what appears to be a death grip on the steering wheel. You follow
the car for 10 miles because you have a gut feeling the driver is drunk.
Finally, the car weaves in its lane and you pull the driver over for
erratic driving. You confirm your suspicion of drunk driving when you
smell the odor of alcohol on the driver’s breath. The driver fails the
field sobriety test and is arrested for drunk driving. Did you have
probable cause to stop this motorist? Write a paragraph explaining
your answer.

2. You are assisting the prosecutor in preparing for trial in a case you
investigated involving a convenience store robbery. The witnesses
include the victim, two other eyewitnesses who observed the
perpetrator as he entered and left the convenience store at the time of
the robbery, the criminalist who identified the perpetrator’s
fingerprints on the cash register, and the officer who supervised the
lineup in which the witnesses identified the perpetrator. The prosecutor
asks your advice on the order of the state’s witnesses. In what order
would you call the various witnesses? Why?

Ethical Dilemmas
1. Assume you are the officer who arrested a defendant for shoplifting at
a local electronics store. Assume further that you are on the witness
stand at trial and the prosecutor asks the following question: “You
observed the defendant take the radio off the shelf and put it in his
backpack, didn’t you?” In fact, you did not see the defendant do such a
thing, but you want to help attain a conviction. What do you say?

2. In order to prosecute a case, the prosecutor must believe there is

probable cause that the suspect committed the crime. However, it is
also the duty of the prosecutor to reveal all information or evidence
that may mitigate, or reduce, the guilt of the suspect. You have some
information that may or may not mitigate the guilt of a man charged
 with rape and murder. You know that if you turn the information over
to the prosecutor, he or she will give it to the defense attorney. Do you
turn the evidence over to the prosecutor? Does it affect your answer
that the evidence will have a substantial impact on the trial or verdict?

Page 55

Endnotes
1. Patton v. United States, 281 U.S. 276 (1930).

2. Duncan v. Louisiana, 391 U.S. 145 (1968).

3. See Baldwin v. New York, 399 U.S. 66 (1970).

4. 399 U.S. 78 (1970).

5. 435 U.S. 223 (1978).

6. 406 U.S. 356 (1972).

7. 406 U.S. 404 (1972).

8. 441 U.S. 130 (1979).

9. 590 U.S. ___, 140 [Link]. 1390 (2020).

10. Id. at 1410.

11. 141 [Link]. 1547, 1551 (2021).

12. Id. at 1582 n.6.

13. See, e.g., Cal. Code Civ. Pro. §224 (West 2018). See also Nancy L.
Dickhuter, Jury Duty for the Blind in the Time of Reasonable
Accommodation, 32 Creighton L. Rev. 849, 873–74 n. 244 (1999).

14. Alaska Code of Civ. Pro. §09.20.010 (2018).

15. Batson v. Kentucky, 476 U.S. 79 (1986).

16. Georgia v. McCollum, 505 U.S. 42 (1992).

17. Batson v. Kentucky, 476 U.S. 79, 89 (1986).

18. 530 U.S. 466 (2000).

19. 536 U.S. 584 (2002).

20. 542 U.S. 296 (2004).

21. See Sparf and Hansen v. United States, 156 U.S. 51 (1895). See also
Aaron McKnight, Jury Nullification As a Tool to Balance the Demands
of Law and Justice, 2013 B.Y.U.L. Rev. 1103 (2013).

22. 372 U.S. 335, 344 (1963).

23. Brady v. Maryland, 373 U.S. 83, 87 (1963).

24. Victor v. Nebraska, 511 U.S. 1, 5 (1994).

25. Holland v. United States, 348 U.S. 121, 140 (1954), as cited and
quoted in Victor, supra.

26. 498 U.S. 39 (1990).

27. Id. at 41.

28. 511 U.S. 1 (1994).

29. See People v. Freeman, 882 P.2d 249 (Cal. 1994).

30. CALJIC 2.90 (2018). In 2005, the Judicial Council of California Jury
Instructions published a plain English set of criminal jury instructions,
CALCRIM. The definition of reasonable doubt in CALCRIM is
“Proof beyond a reasonable doubt is proof that leaves you with an
abiding conviction that the charge is true. The evidence need not
eliminate all possible doubt because everything in life is open to some
 possible or imaginary doubt.” Judicial Council of California Criminal
Jury Instruction 103 (West 2021).

31. Victor v. Nebraska, 511 U.S. at 18. The current approved Nebraska
reasonable doubt instruction reads “A reasonable doubt is one based
upon reason and common sense after careful and impartial
consideration of all the evidence. Proof beyond a reasonable doubt is
proof so convincing that you would rely and act upon it without
hesitation in the more serious and important transactions of life.
However, proof beyond a reasonable doubt does not mean proof
beyond all possible doubt.” 1 Neb. Prac., NJI2d Crim. 2.0 (2016-2017
ed.) (West 2022).

32. 5 J. Wigmore, Evidence §1367 (3d ed. 1940), as cited in California v.

Green, 399 U.S. 149, 158 (1970).

33. 524 U.S. 296 (2004).

34. 543 U.S. 220 (2005).

Design Element: ©Ingram Publishing

Page 56

Evidence—Basic Concepts

Pool/Getty Images

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Chapter Outline

Describing Evidence

Relevant Evidence

Balancing the Potential for Unfair Prejudice, Remoteness, and the Like

Material Evidence
 Competent (or Incompetent) Evidence

Prima Facie Evidence

Contradictory and Corroborative Evidence

Judicial Notice

Notice of Public Statutes

Notice of Geographical Facts

Notice of Words, Phrases, and Abbreviations

Notice of Time, Days, and Dates

Scientific and Medical Facts

Presumptions

Inferences and “Conclusive” Presumptions Distinguished

The Policy Behind Presumptions

The Effects of Presumptions: Jury Instructions and Burden of Proof

Distinguishing Mandatory from Permissive Presumptions:

Presumptions in Criminal Cases

Some Common Rebuttable Presumptions and Their Status Under the

Law

Knowledge of the Law

Presumptions, Not Evidence

Burden of Proof

Stipulations

Review and Application

Chapter Objectives

This chapter introduces the basic concepts of evidence used in the American legal
system. After reading this chapter, you will be able to:

List the four general categories of evidence.

Define relevant evidence.

Discuss some of the reasons relevant evidence may be excluded.

Explain the difference between contradictory and corroborative evidence.

Define judicial notice.

Describe four examples of facts that a court may judicially notice.

List the two factual components of a true presumption.

Describe the relationship of a presumed fact to a basic fact.

Describe two examples of rebuttable presumptions.

Explain what a stipulation is.

Page 58

Describing Evidence
For clarity, evidence may be categorized within the following four general headings:
(1) testimony of witnesses; (2) real, or physical, evidence; (3) documents, or writings;
and (4) demonstrative evidence, i.e., visual or audiovisual aids for the jury. These
classifications cover all forms of evidence. Other ways of categorizing evidence are
sometimes used. For example, there is direct evidence—witnesses’ testimony that the
jury need not draw an inference from in order to find the facts to exist. There is also
circumstantial evidence—evidence from which an inference must be drawn for the
jury to find the facts to exist. (Circumstantial evidence is thoroughly described in
Chapter 11.) Sometimes evidence is classified on the basis of the distinction between
competent and incompetent evidence. Some jurisdictions classify judicial notice and
presumptions as kinds of evidence, although they are actually substitutions for
evidence. Each of the four categories of evidence listed at the beginning of this
paragraph has its own important and unique function in the presentation of facts during
a trial proceeding and will be discussed in detail later in this book. First, there are
certain terms used to describe or qualify evidence that should be clearly understood.
These terms relate to the admissibility of evidence in court. To be admissible in court,
evidence must be as listed here:

Relevant

On balance, more relevant than unfairly prejudicial

Otherwise competent or admissible

Relevant Evidence
All evidence, in the first instance, must relate to the issues of the case. If the evidence
is not connected to those issues, it should not be admitted. If the evidence is related, it
is said to be relevant. Relevant evidence is defined by FRE 401 as evidence that “has
any tendency to make a fact more or less probable than it would be without the
evidence; … and the fact is of consequence in determining the action.” Whether the
existence of a fact of consequence is more or less probable is a question of common
sense and logic rather than an intricate rule of evidence. To be admissible in court, the
evidence need only have any tendency to make the existence of a fact of consequence
more probable or less probable than it would be without the evidence.
The testimony of a witness who saw a man break into a building during the night
clearly would be relevant evidence to prove a burglary. Another witness’s testimony
that the same man was missing from work at the time of the burglary would also be
relevant, since it would make the fact that the man could have been committing the
burglary “somewhat” more probable. Burglary tools found in the man’s possession
would also be relevant to prove the man committed the burglary. On the other hand,
the fact that the moon was full on the night of the burglary would not be admissible as
relevant to assist the jury in determining whether the accused was “unusually likely to
have behaved irrationally on that night.”1

Balancing the Potential for Unfair Prejudice,

Remoteness, and the Like
As stated earlier, evidence that is not relevant is not admissible. However, even
relevant evidence can be inadmissible. Evidence may be excluded from trial for
reasons that have nothing to do with logical relevance. One such reason for exclusion
is when the evidence has a tendency to unduly prejudice or inflame the minds of the
jury. For example, gruesome photographs of a bloody victim in a homicide case, or
evidence of an accused’s prior convictions, may be very relevant to establish guilt, but,
because of the prejudicial effect of such evidence, it may be excluded. Relevant
evidence may also be excluded if it would tend to cause confusion or create so many
side issues that trial time would be wasted if it were admitted. Relevant evidence that
is so remote or speculative in time or place that only a weak logical inference can be
drawn from it may be excluded. An example of such an exclusion is described in the
following case.

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A defendant was on trial on a charge of sexual assault (rape). He was observed by an

officer near the scene of the crime shortly afterward and fit the description of the
assailant. Later, the victim identified the defendant as the man who attacked her. At the
time of his arrest, the defendant had, in his wallet, photographs of nude women. The
prosecution offered these photographs at trial to show that the defendant had the intent
to commit the assault and was therefore the perpetrator. The defendant’s possession of
the photographs supports an inference that, because of his interest in naked women, he
was likely to have committed sexual assault. However, the judge at trial decided to
exclude the evidence because the suggested inference was weak but substantially
increased the possibility of jury prejudice, confusion, or distraction. The judge
concluded that, although the evidence was relevant in showing the defendant’s motive,
its value was substantially outweighed by its potential for unfairly prejudicing the
minds of the jury toward the accused.
It is the responsibility of the trial judge to determine whether evidence meets the test
of relevancy. It is also up to the trial judge to decide whether relevant evidence might
be excluded because it is too prejudicial, remote, confusing, time consuming, or
otherwise unfair. As FRE 403 puts it, the trial judge may exclude relevant evidence if
“its probative value is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” This balancing test is
sometimes also referred to as legal relevancy. In the case of the photographs of nude
women just discussed, for example, the trial judge balanced the potential prejudice to
the defendant against the weight of the evidence on the issue offered. The judge
decided the evidence was substantially more prejudicial than probative. The trial judge
could have decided to admit the evidence, and that decision probably would not have
been criticized by an appellate court, since the balancing decision is within the
discretion of the trial judge.

This balancing test has been incorporated into other rules of evidence, both under the
common law rules and under the FRE. For example, the accused in a sexual assault
case cannot introduce evidence that a victim has had consensual sexual relations with
someone else to show that she likely consented to sex with the accused. Even though
that evidence may have some arguable relevance on the issue of consent, the policy of
promoting the report of sex offenses and protecting victims has been declared by
lawmakers to far outweigh the minimum relevant value of such evidence to the
accused.

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Relevant evidence may also be excluded because it is inadmissible based on other

rules of evidence or other laws. For example, hearsay evidence may be very relevant
and not unfairly prejudicial or remote. It still will be excluded if, within the hearsay
rule, it does not qualify as admissible evidence. A piece of physical evidence may be
highly relevant, yet it may be excluded because it was improperly obtained in violation
of the accused’s rights under the Fourth Amendment to the Constitution of the United
States.

FYI

In a highly publicized prosecution of basketball superstar Kobe Bryant for sexual

assault, the case was dismissed by the prosecution when certain critical evidence
favorable to the defense became public. Even though Colorado has a rape shield law,
the trial judge in the case ruled that evidence about the victim’s sexual activities after
the alleged rape by Bryant and before the victim had a hospital examination would be
admissible at the trial. A defense expert, based on the physical evidence taken from the
woman, concluded that she had sex with at least one other person during that time
period. The judge stated that the reason for allowing such evidence into the trial under
the rape shield law was to show that the victim’s physical injuries, particularly vaginal
tearing, could have come from that other sexual encounter. This would support Kobe’s
claim that he had consensual sex with the victim and refute the prosecution’s claim
that the physical injury proved the sexual encounter with Kobe was non-consensual.
Such use of the evidence is permitted under rape shield law generally, as it was under
Colorado’s rape shield law.

Material Evidence
Many people erroneously use the terms “relevant evidence” and “material evidence”
interchangeably. “Materiality” refers to whether a fact is one of consequence to the
case. The issues of balancing and competency are not included in the definition of
materiality. Thus, it is appropriate to speak of material or immaterial facts as part of
the formula for relevance.

In any case, the judge decides what facts are of consequence, and thus material, based
on the definitions of law and the pleadings. The criminal law defines the elements of
crimes and defenses that, in part, determine materiality in any given case. The
complaint, information, or indictment in a criminal case will also set the limits of what
is a material fact in any given case. For example, a defendant is on trial for murder by
intentional killing. Evidence of the cost of the shoes the victim was wearing has
nothing to do with the case, either under the law of homicide or as the accused was
charged. Therefore, that fact is immaterial.

The question of the admissibility of evidence of parental sexual abuse in the 1994–
1996 trials of Erik and Lyle Menendez for the murders of their mother and father
illustrates the concept of materiality. Under California law, self-defense may be shown
only if the defendants had an honest belief that their parents were about to kill them
and that their belief was reasonable, that is, that a reasonable person would be justified
in such a belief. The trial judge, in both trials of the brothers, concluded that, at the
time of the killing, the parents posed no threat to the brothers, so they were not entitled
to a self-defense theory. Further, in the first trial, the judge ruled that if, under
California law, the jury believed the brothers had an honest but unreasonable belief in
the threat, then the jury could find them guilty of the lesser crime of voluntary
manslaughter rather than murder. This is called imperfect self-defense because the
defendant tries to prove self-defense and fails to do so under the law’s definition.

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Stephen Kim/Getty Images
 Stephen Kim/Getty Images

During their 1994–1996 trials for the murders of their mother and father,
Erik and Lyle Menendez were denied use of the self-defense theory.

Since the trial judge said California law defined the crime of voluntary manslaughter
in that way, the defendants were permitted to introduce evidence of their parents’
abuse during the first trial. The abuse evidence was admissible on the material fact of
the honest but unreasonable belief of the brothers on the issues related to imperfect
self-defense, even though that evidence was immaterial on the issues related to
complete self-defense. However, in the second trial, the trial judge ruled that, under a
more recent decision by the California Supreme Court, even imperfect self-defense
could not be used by the brothers, since there was no immediate threat to their well-
being posed by the parents. That ruling made the sexual abuse evidence immaterial
and therefore inadmissible. Both brothers were convicted of first-degree murder in
March 1996.

Competent (or Incompetent) Evidence

Ordinarily, the term “competency” is used when a judge decides whether a person is
competent or qualified to testify in a trial proceeding. However, it is also used to
describe whether certain evidence is admissible. Competent evidence has been
described as evidence that is admissible. Incompetent evidence is evidence that the law
does not allow to be used in evidence at all. For example, a confession may shed light
upon the facts of a case, yet, because of some irregularity in obtaining it, the judge
may rule that it is not admissible. Evidence of such a confession may be termed
“incompetent.” Because the terms “competent” and “incompetent” evidence are
somewhat confusing, it is better to substitute the terms “admissible” and
“inadmissible” evidence, avoiding the term “competency.” The use of “competency”
as it relates to witnesses will be discussed in detail in Chapter 4.

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Prima Facie Evidence

Prima facie evidence is that evidence that, standing alone, unexplained or
uncontradicted, is sufficient to establish a given fact or a group of facts constituting a
party’s claim or defense. In other words, it is the bare minimum of evidence necessary
to sustain a position by the side offering the evidence. The term “prima facie” means
“at first sight” or “on the face of it.” Further, the phrase “prima facie case,” in the
context of a criminal trial, is the measure of evidence the government must present if
the case is to go to the jury. If there is no prima facie case made in the government’s
case-in-chief, the defendant is entitled to a judgment of acquittal. A prima facie
criminal case is made when the prosecution has established that a crime has been
committed and that the accused probably committed it. In some jurisdictions, the
evidence necessary in a criminal proceeding to support a charge at a preliminary
hearing is called a prima facie showing or case.
Prima facie evidence is often associated with the violation of a statute. For example, if
the operator of a vehicle exceeds the posted speed limit, the excess speed is prima
facie evidence of a traffic violation and is sufficient to prove the violation unless some
evidence is presented by the operator to justify the excess speed. To cite another
example, if one individual sees another shoot a third person, this is prima facie
evidence that a homicide has been committed. The offender, though, may attempt to
overcome the prima facie evidence by presenting evidence that the shooting was done
in self-defense.

Contradictory and Corroborative Evidence

Contradictory evidence and corroborative evidence are two opposite forms of
evidence. Contradictory evidence is evidence that is used to prove a fact contrary to
what has been asserted by a party or witness. Corroborative evidence is evidence that
is supportive of other evidence already given, tending to strengthen or confirm the
prior evidence. Corroborative evidence may be seen as evidence necessary to the
party’s claim or defense. Corroborative evidence must also be distinguished from
cumulative evidence, mentioned previously in connection with the judge’s discretion
to balance probative value against the needless presentation of such evidence.
Cumulative evidence is evidence that repeats earlier testimonial or tangible evidence,
whereas corroborative evidence is additional evidence of a different character
supporting the same point.

To illustrate the difference between contradictory evidence and corroborative

evidence, consider the facts of the following hypothetical case. The defendant is on
trial for selling narcotics on the night of April 13 at 8 p.m. Testifying in his own
behalf, the defendant introduces an alibi defense. He alleges that he could not have
committed the crime, as he was at a place other than where the crime was committed
and had been mistakenly identified as the seller. The defendant claims that on the night
in question he was attending a movie with his wife, sister, and mother. He testifies that
they saw the movie Black Panther at the Odeon Cinema and that it was raining that
night. The wife, sister, and mother all testify to the same facts, which is considered
cumulative evidence, since the three women repeat the testimony of the defendant.
After the wife testifies, the judge is justified in excluding the cumulative testimony of
the sister and mother as a waste of court time.

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The manager of the Odeon Cinema is called as a witness and testifies that on the night
of April 13, the movie Black Panther was showing. The manager’s testimony
corroborates the defendant’s testimony. The prosecution then calls as a witness in
rebuttal an official of the weather bureau, who testifies that it was partly cloudy with
no chance of rain on the night in question. The weather bureau official’s testimony
contradicts the testimony of the defendant and his wife, sister, and mother.
Judicial Notice
The law of evidence is designed to ensure the accuracy of evidence
presented at trial. Each point must be properly and legally presented and
proved. This proof must be presented, with few exceptions, by witnesses
who have personal knowledge of the facts about which they are testifying.
However, the verification of every fact by a witness with firsthand
knowledge results in a very costly procedure from the standpoint of time,
energy, and money. Under some circumstances, a substitute for evidence
may be allowed.

One category of an allowed substitute for evidence is when there are certain
facts that may be accepted by the court without formal proof, in the form of
testimony or tangible evidence, being presented. These facts, of which a
judge may take judicial notice, must first be “not subject to reasonable
dispute”: Generally, such undisputed facts fall within two categories; they
either (1) are “generally known within the trial court’s territorial jurisdiction
or (2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.”2 In the first category are facts
that have been established through common knowledge, for example, the
fact that it is light during the day and dark at night or that a stone sinks
when thrown into a pond. The second category includes facts that are
readily verifiable by referring to an indisputable, accurate source. An
example is that the location of an intersection may be verified by a street
atlas, or that the stopping distances of automobiles at various speeds may be
determined by referring to the appropriate table. Certain facts may already
be known by the judge, and reference to an outside source may be
unnecessary. However, not having personal knowledge of a fact need not
prevent a judge from taking judicial notice of its existence. There are some
facts judges may accept immediately and others that they may accept after
referring to some record or other source.

For example, FRE 201(c)(2) requires a court to take judicial notice of a fact
if one of the parties makes a request for notice and supplies the court with
the necessary information to verify the fact. Once a request for judicial
notice is made, the opposing party is entitled to oppose the request.
Therefore, a party cannot unilaterally ask for a fact to be judicially noticed
without giving the other party an opportunity to discuss the matter with the
court. Additionally, a court may sua sponte (on its own) take judicial notice
of a fact even if neither of the parties has requested it to do so.

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Judicially noticed facts are treated differently in civil and criminal trials.
According to FRE 201(f), “In a civil case, the court must instruct the jury to
accept the noticed fact as conclusive. In a criminal case, the court must
instruct the jury that it may or may not accept the noticed fact as
conclusive.” A criminal jury must be given discretion to accept or reject a
judicially noticed fact, or the defendant’s Sixth Amendment right to trial by
jury will be violated. In other words, for a trial judge in a criminal case to
require the jury to accept the judicially noticed fact as true would usurp the
jury’s function as trier of fact and violate the Sixth Amendment.

If a judge refuses an attorney’s request to take judicial notice of a pertinent

fact, then that attorney will have to present adequate proof to establish the
existence of the fact.

Judicial notice may be taken at any time or at any stage of any proceeding.
Thus, any court may take judicial notice at any point in a trial, even after
the side seeking judicial notice has rested its case. Additionally, a court may
take judicial notice of a fact on appeal.

The following are some of the more common facts of which a judge might
take judicial notice in a criminal trial.

Notice of Public Statutes

Most jurisdictions permit judges to take judicial notice of all public statutes,
or laws, of the United States, as well as those of their own state. Under the
FRE, most state and federal court judges take judicial notice of statutes of
“sister states.” This is because the laws of most states and the federal
government are readily ascertainable by anyone who knows how to look
them up. Some forms of laws, such as municipal codes, are not codified or
published regularly, or at all, and thus must be the subject of proof, not
judicial notice.

Lawyers cannot assume that judges know every law or city ordinance.
Therefore, lawyers must often present the judge with sufficient references
and information to convince the judge that the law was enacted and is still
in force. This must be done even for the laws of the state in which the judge
is sitting. The material submitted to the judge citing the relevant law is not
considered evidence; it is only the basis for the judge to take judicial notice
of public law.

ON THE JOB

A court may take judicial notice of the location of streets and highways
within a county or city. However, the law enforcement officer should be
prepared to testify that the events under investigation took place in the
town, city, or county in which the case is on trial in order to supply the
proof that the trial is taking place in the proper court. This is important
because a court usually has the power, or jurisdiction, over a criminal case
only when the crime was committed in the county in which the court is
located.

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Notice of Geographical Facts

Many well-established geographical facts fall within the category of judicial
notice or knowledge of the court. These include state boundaries,
international borders, city limits, and the location of streets and highways.
The navigability of certain waters is also recognized, as are the differences
in temperature between the North and the South. In some cases, a judge
may not have personal knowledge of the geographical fact in question and
may wish to consult an official map or other source of information that is
not subject to reasonable dispute.
Notice of Words, Phrases, and Abbreviations
The court will take judicial notice of commonly known words, phrases, or
abbreviations. For example, the words “whiskey” and “wine” will be
recognized as intoxicating beverages. The abbreviations “a.m.” and “p.m.”
are well known and will be accepted in court. Slang will be judicially
noticed. For example, “piece” will be recognized as “gun,” and “waste him”
will be acknowledged to mean “kill him.” A judge may even take notice of
jargon or terms used in the vernacular when the meaning of the term is in
widespread use. For example, the term “coke” is so well known in certain
contexts to mean “cocaine” that a judge may take judicial notice of that
fact.

Notice of Time, Days, and Dates

Many facts about time are judicially recognized, such as 24 hours make a
day or seven days make a week. January 1 is recognized as the beginning of
the new calendar year, and July 4 is accepted as a national holiday in the
United States. However, because of differences in religious beliefs, Sunday
is not accepted as being the Sabbath.

Scientific and Medical Facts

For a scientific or medical fact to fall within the realm of judicial notice, it
must be an established fact. Scientific and medical theories progress from
the unknown, to the debatable, to the generally accepted, and then
eventually to established facts.

Perhaps no area of judicial notice is more subject to change than that of

science and medicine. With the research and progress made in these fields,
what was once an accepted fact is now nothing more than an ancient myth.
At one point, it was accepted fact that the earth was flat, flying to the moon
was impossible, tuberculosis meant certain death, and tomatoes were
poisonous. Likewise, many scientific/medical principles that were at one
time unknown are now commonly accepted, such as the sterilization of
milk; immunization against disease; and visualization of the structure of
human cells, tissues, and organs using magnetic resonance imaging.

The question of whether a scientific or other principle can be judicially

noticed by a judge is different from the question of whether an expert may
rely upon the principle in rendering an opinion in expert testimony. The
prevailing FRE approach to qualification of a subject for expert testimony,
including the United States Supreme Court’s standard stated in its 1993 and
1999 decisions in the Daubert and Kumho Tire3 cases, is discussed in
Chapter 5. In summary, a scientific or other fact may be sufficiently
recognized to be used by an expert in giving opinion testimony but
insufficiently accepted to be judicially noticed by a judge.

ON THE JOB

Whenever possible, a law enforcement officer should be specific in his or

her use of language in court. Although “coke” is widely accepted as
“cocaine,” other terms may not be as clear. For example, while “speed” is a
term generally used for amphetamines and methamphetamines, in some
cases it is used to refer to cocaine.

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The acceptance of many scientific and medical facts has worked to the
advantage of law enforcement professionals. For example, courts take
judicial notice of radar as a means of determining speed, although the
accuracy and efficiency of the apparatus will depend upon the officer who
uses it. It is up to the officer to convince the jury of his or her ability. The
courts routinely accept the analysis of fingerprints, DNA, bodily fluid
secretions, blood types, and hair structure to connect a suspect to a crime
scene. However, the issue of whether the questioned fingerprints,
secretions, blood, or other materials match the criminal defendant is a fact
the jury will decide.

There are several scientific and medical principles that have not gained
acceptance and thus are not judicially recognized. Controversy over the
acceptance of these principles has raged for years. Two of the most
significant are the validity of the results of the polygraph, or lie detector,
and the effects of hypnosis on stimulating a person’s memory. The universal
rule in the United States is that polygraph results are inadmissible in court,
even though many law enforcement agencies and other organizations
continue to use them for investigative purposes. Witnesses whose memories
have been hypnotically refreshed are not banned from testifying, but there
are severe restrictions upon the use of the portion of the testimony that may
have resulted from hypnosis. Most courts refuse to recognize the validity of
such memory recall techniques.

Application Case

A number of states have ruled that hypnotically enhanced testimony should

be excluded at trial on the grounds that it tends to be unreliable. There is
substantial evidence that hypnosis may induce false memories. In Rock v.
Arkansas,4 the United States Supreme Court held that Arkansas’s
exclusionary rule could not apply to a defendant who wanted to testify after
hypnosis to explain how the gun that killed her husband went off
accidentally. The Court held that an automatic rule of total exclusion of a
hypnotized person’s testimony, established by the state courts or legislature,
could not be applied to a defendant even if the rule could apply to
witnesses. It should be noted that the Court’s decision was founded on a
defendant’s right in a criminal case to “present relevant testimony,” which
is found in the Compulsory Process Clause of the Sixth Amendment to the
United States Constitution. This decision, however, has led to continued
debate over the validity of hypnotically refreshed testimony.

Page 67

ON THE JOB

In the 1987 case of Rock v. Arkansas,5 the United States Supreme Court
approved the rule adopted by many states that a witness who is not a
defendant and whose memory has been hypnotically refreshed cannot
testify about the matters recalled under hypnosis. But a witness who
recalled certain matters before being hypnotized may testify about those
matters even after being hypnotized. To preserve the record of what
testimony has and has not been affected by hypnosis, the law enforcement
officer must record, preferably on video, the witness’s recall at all stages.
The officer must take great care in preparation, as it is impossible to “undo”
mistakes in documentation or interviewing. The officer would be wise to
role play the interview beforehand with a colleague. Another recommended
tactic is to have other persons present during interviews, even if recorded.
These additional witnesses are then available to corroborate the recorded
events.
Presumptions
Like judicial notice, a presumption is a device that substitutes for evidence.
When allowed to operate, a presumption permits (or requires) the fact-
finder (often the jury) to conclude that, because a party has introduced
evidence that one fact exists (called the “basic fact”), another fact (called
the “presumed fact”) exists, even though the party has not introduced any
other evidence of the existence of the presumed fact. The following two
examples will help explain this concept. In the first example, the law states
that a letter properly addressed, stamped, and placed in the mail is
presumed to have been delivered. In the second example, a person who has
been missing and unheard of for seven years is presumed to be dead. In
these two examples, the basic facts are, respectively, the proper mailing of a
letter and the disappearance of a person who has not been heard of in seven
years. The presumed facts are delivery of the letter and death of the missing
person. The subject of presumptions involves a number of concepts that
must be understood. In the law of evidence, a presumption is a term of art
that has limited and specific effects in operation. Presumptions may be
“mandatory” or “rebuttable.” In recent years, the United States Supreme
Court has severely restricted the use of true presumptions in criminal cases
because, otherwise, criminal defendants would be deprived of the right to
have the jury decide the facts in a criminal case beyond a reasonable doubt.
When a true presumption operates, the jury is told that they “must” find a
presumed fact to exist, even when there is no evidence of the presumed fact
other than the evidence of the basic fact.

Inferences and “Conclusive” Presumptions

Distinguished
The term “presumption” is often misused. Even in everyday
communications, we often say we are “presuming” something, when what
we really mean is that we are making an inference, or drawing a conclusion
from an observation or a series of observations. A presumption as used in
the law of evidence is when the jury is told that, if they believe that fact A
exists, they must find that fact B exists. For example, a defendant is charged
with possession of a pound of cocaine with intent to sell it. In this case,
there is a presumption of “intent to sell” that the law infers based upon the
quantity of illicit drugs a person possesses. The presumption would operate
in this example if the jury were told “If you believe that the defendant had
possession of one pound of cocaine, you must conclude that he had the
intent to sell it.” Note that this example of a presumption is not proper
because concluding that the defendant had intent to sell would be merely an
inference.

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Another misapplication of the term “presumption” is what the law

sometimes refers to as a “conclusive” presumption. A conclusive
presumption is one that the law demands or directs be made from a set of
facts and that cannot be refuted by other evidence. Conclusive presumptions
are also referred to as “irrebuttable” presumptions. In truth, conclusive
presumptions are rules of law and therefore the term is not widely used. The
following example of a conclusive presumption may help clarify the
concept. In California, until the mid-1990s, when a child was born to a
married couple who were having relations at the time of conception and the
husband was not impotent or sterile, a conclusive presumption arose that
the husband was the father of the child. No evidence that some other man
could have been the child’s father would have been admissible to rebut this
presumption. The basis for this presumption was the law’s desire to avoid
children’s illegitimacy.6

Conclusive presumptions cannot be used to prove an element of the crime

charged in criminal cases because, as in the case of a court taking judicial
notice, imposing such conclusive presumptions would relieve the
prosecution of the burden of proving the defendant guilty beyond a
reasonable doubt. Such an action would violate the Sixth Amendment of the
United States Constitution. For example, consider the case of Leary v.
United States.7 In this case, Timothy Leary was convicted of “possession of
marijuana knowing it was imported into the United States.” The statute
under which he was convicted established a presumption of knowledge of
illegal importation from mere possession of the marijuana. The Supreme
Court of the United States held that the law was unconstitutional because it
established a presumption that had a conclusive effect and was, therefore,
improper in this criminal case.

In some states, however, conclusive presumptions are still recognized and

have been held constitutional as a substantive rule of law that must be
followed in noncriminal cases. For instance, in California, a tenant is not
permitted to deny the title of his or her landlord at the time a lease begins.
The title is conclusively presumed to be valid.

In contrast to an inference or a conclusive presumption, a true presumption

applies in the following manner: If the basic fact is found to exist, then the
jury must find the presumed fact to exist in the absence of evidence to the
contrary being introduced. Using the example of the proper mailing of a
letter, if the proponent of the presumption introduced evidence of proper
mailing, then the jury would be instructed that it must find the letter to have
been delivered, unless the opposing party offered evidence that the letter
was not received. Using the example of the missing person, if the party
seeking the benefit of the presumption offered evidence that the person was
missing and unheard of for seven years, the jury would be instructed that it
must find that the missing person was dead, unless the opponent of the
presumption offered evidence to the contrary.

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The Policy Behind Presumptions

Presumptions are conclusions that the law requires to be drawn from certain
sets of facts. They are recognized because they follow in the normal course
of human experience. Experience has proven that, each time a given set of
facts arises, the end results of the set are very likely to be the same. Under
these circumstances, it is logical to presume that the same results will
continue to take place. The examples of delivery of a properly mailed letter
and death of a missing and unheard-of person fit this pattern. These are
logical presumptions, since they are what normally take place in these
situations. They are the most probable results. Thus, one reason
presumptions are recognized is that they are based on the law of probability.
The acceptance of presumptions is also based on the social habits of human
beings. Consider again the example of presuming dead a person who has
been missing and unheard of for seven years. Most people are gregarious
creatures with family ties, and they do not normally vanish without making
contact with either friends or family unless a tragedy has taken place. If
there has been no information about a person for seven years, the logical
deduction or presumption is that the person is dead. There is nothing
particularly significant or magical about the seven-year period, which
probably comes from old English statutes that declared that a person who
went to sea or was otherwise absent from the kingdom for seven years was
presumed to be dead. Some people assert that this period is now too long,
arguing that it no longer reflects the reality of high-speed transportation and
communication, and that a period of three years is more appropriate.

Because the basis of a presumption is either probability or human

experience, the question arises whether a presumption that is not probable
or is not within common experience is valid. The Supreme Court of the
United States has also addressed this issue. The Court has declared that, at a
minimum, the presumed fact must flow from the basic fact measured by a
standard of a preponderance of evidence. A preponderance of the evidence
is said to be “50 percent plus a feather.” In other words, in judging the
validity of a presumption, one must conclude that the presumptive fact
follows from the basic fact more likely than not.

The preponderance of the evidence standard is the formulation for what is

known as a permissive presumption, as distinguished from a mandatory
presumption. In contrast, the standard of proof of a mandatory presumption
is “beyond a reasonable doubt,” according to the Supreme Court. This
distinction will be examined again after the difference between mandatory
and permissive presumptions is discussed.

The Effects of Presumptions: Jury Instructions

and Burden of Proof
A presumption has very limited, but significant, effects. The first effect
relates to what the jury is told about the presumption. For example, when
delivery of a mailed letter is defined as a rebuttable, mandatory
presumption in the state in which the trial is taking place and the opponent
of the presumption offers no evidence to rebut the conclusion, the judge
would tell the jury that if they find that the letter was properly mailed, they
must find that it was delivered.

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The second effect of a presumption is the effect on the burden of proof. The
burden of proof is a party’s obligation to introduce evidence in a lawsuit and
to persuade the fact-finder that the evidence is believable. The burden of
proof, therefore, has two elements: (1) the burden of producing evidence
(production burden) and (2) the burden of persuading the trier of fact
(persuasion burden). If the party having the burden of production fails to
produce any evidence, then that party loses for that reason alone, and the
judge can direct a verdict without the case ever going to the jury. If the
party having the production burden introduces evidence, that evidence must
be strong enough to convince the jury of the facts the evidence supports.

A presumption usually just affects the burden of production by shifting it to

the party against whom the presumption operates. In other words, the
presumption affects the burden of producing evidence by putting the burden
on the party that needs to prove the claim. For example, consider the
presumption of delivery from proper mailing to illustrate this concept.
Assume the party seeking to use the presumption introduces evidence of
proper mailing. The presumption will operate and the jury will be instructed
that they must find delivery if they believe the evidence of proper mailing,
unless the opponent of the presumption comes forward and introduces
evidence to rebut the presumption. In most states (and under the FRE), the
only effect of a presumption is that it shifts the production burden. In those
states, once the opponent of the presumption has introduced any evidence
rebutting the presumed fact—in this case, testimony of nondelivery—the
presumption disappears, and the jury hears the conflicting evidence on both
sides (proper mailing versus nondelivery). The jury decides the fact as it
wishes and is told nothing about presumptions in such a case.
Distinguishing Mandatory from Permissive
Presumptions: Presumptions in Criminal Cases
Presumptions may be incorrect. For some unknown reason, a letter may not
have been delivered. Or, due to unexpected events, the person who has been
missing and unheard of for seven years may not be dead but instead may be
quite well and living peacefully in some distant community. For this reason,
the law usually provides for a rebuttable presumption, which means the
opponent of the presumption may introduce evidence to rebut the
presumption’s conclusion. Thus, for example, in the face of an attempt to
use the presumption of receipt of a letter based upon evidence of the fact
that a letter was properly mailed, the addressee could take the stand and
testify that the letter was not received. Therefore, the presumption would
cease to operate in the case in most states. Then the jury could decide the
matter considering the logical inferences from proper mailing, on the one
hand, and the testimony of nonreceipt on the other.

However, if the presumption continues to operate in the case, even if the

presumption is rebuttable, we must consider whether the effect of the
presumption on the jury is to require it to find the presumed fact to exist.
That is, we must consider whether the presumed fact should be required to
be found to exist when the basic fact has been proven, or whether the jury
should merely be allowed to find the presumed fact if the jury chooses to do
so. A true presumption requires the jury to find the presumed fact from the
existence of the basic fact and may be called a mandatory presumption. In
other words, the permissive form operates only as an inference. Therefore,
for a presumption to operate at all requires it to be mandatory in effect.

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The reason it is necessary to distinguish between permissive and mandatory

presumptions is that the United States Constitution has a number of
provisions affecting the rights of persons accused of crimes. Such rights
include due process of law, under the Fifth and Fourteenth Amendments,
and the Sixth Amendment’s provisions of the right to trial by jury. The
United States Supreme Court has held that the right to a fair trial by jury in
criminal cases carries with it the requirement that the prosecution prove the
case against the accused by evidence beyond a reasonable doubt as to every
element of the crime charged. Thus, the burden of proof is upon the
prosecution, and the defendant is entitled to a presumption of innocence
unless and until the prosecution satisfies its burden. If a presumption in
favor of the prosecution were to operate in a criminal case to relieve the
prosecution of its burden of producing evidence or persuasion, the right of
the accused to a fair trial by jury would be violated.

Some Common Rebuttable Presumptions and

Their Status Under the Law
There are many rebuttable presumptions that are valid because they do not
conflict with constitutional principles or some state statute. Law
enforcement professionals need to be familiar with the following
presumptions commonly encountered in criminal cases.

Presumption of Innocence

Perhaps there is no better known rebuttable presumption than that “a person

is presumed innocent until proved guilty” or, as it is sometimes stated, “a
person is presumed innocent of a crime or a wrong.” This presumption of
innocence is based upon the needs of a free society; it is a part of our
national heritage and has been described as a person’s guarantee against
injustice and oppression. It is this presumption that the prosecution must
overcome if the prosecuting attorney is to prove the defendant guilty
beyond a reasonable doubt.

Presumption of Sanity

There is a general presumption that all persons are sane. This presumption
of sanity stems from the fact that sanity is the normal human condition. It
permits the prosecution to proceed with a criminal trial without having to
first prove the defendant to have been sane at the time that the crime was
committed. However, once insanity is raised or put in issue in the case, the
situation changes. In all federal prosecutions, if the defendant raises an
affirmative defense of insanity, the Insanity Defense Reform Act of 1984
places the burden of proof upon the defendant to establish insanity by clear
and convincing evidence.8 In the absence of such a statute, the presumption
of sanity would disappear, and the prosecution would have to prove sanity
beyond a reasonable doubt or by a preponderance of the evidence standard.
The degree of evidence that the defendant claiming insanity is required to
produce may vary in those states that have followed the lead of the Insanity
Reform Act; some jurisdictions require “some” evidence, others require
“slight” evidence, and others permit “any” evidence to raise the issue.

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Application Case

In the case of Cooper v. Oklahoma,9 the United States Supreme Court held
that an Oklahoma law presuming a criminal defendant competent to stand
trial unless he or she proves incompetence by clear and convincing
evidence violates the Due Process Clause of the Fourteenth Amendment to
the Constitution of the United States. The decision of the Court was
unanimous.

Children Under a Certain Age Are Not Capable of Committing

a Crime

Under this common law rule, it was “conclusively presumed” that a child
under the age of seven was not capable of committing a crime—a
presumption of incapacity. Not all states in this country recognize this
presumption as conclusive; some term it a rebuttable presumption. In
addition, the common law rule was that a child between the ages of 7 and
14 was presumed to be incapable of committing a crime. This presumption
could be rebutted by evidence that the child knew that the act done was
wrongful. Some states still retain this rebuttable presumption, although the
ages to which it applies may differ from state to state.

Miscellaneous Rebuttable Presumptions

The following are some additional better-known rebuttable presumptions. If
any state laws still contain mandatory language (i.e., “must”), that language
cannot be used in a criminal case. In the 1979 case of Sandstrom v.
Montana,10 the United States Supreme Court ruled that a presumption
cannot be applied mandatorily in a criminal case. In other words, the jury
may be told that they may infer that the defendant acted with intent, but it is
not mandatory they find it from a presumption. Thus, many of the following
presumptions under the common law rule are now applicable in a criminal
case only as allowable inferences:

People intend the ordinary consequences of their voluntary acts.

An unlawful intent is presumed from doing an unlawful act.

Evidence willfully suppressed would be adverse if produced.

Official duty has been regularly performed.

The ordinary course of business, or routine practice, has been

followed.

A date on a writing is correct.

A man and a woman reporting themselves as husband and wife are

legally married.

The law has been obeyed.

A ceremonial marriage is valid.

The identity of a person can be determined by the person’s name.

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Knowledge of the Law

There is no established legal presumption that a “person is presumed to
know the law.” However, there is a maxim or rule of law providing that
everyone is assumed to know the law and that ignorance of the law is no
defense for a criminal act. Additionally, the claim that one did not know
that an act was punishable is not a defense. This maxim is based on the
demands of society. Otherwise, successful prosecutions could be defeated if
offenders were able to claim ignorance of the law as their defense.

Presumptions, Not Evidence

Today, in an overwhelming majority of jurisdictions, a presumption is not
evidence. This is an important point, for if a presumption is classified as
evidence, it may confuse the jury into giving the presumption as much
weight as witness testimony and tangible evidence. By declaring that
presumptions are not evidence, the law materially lessens the burden upon
the jury, as the jurors may, with a clear conscience, give greater weight to
the evidence presented than to the deduction that must be drawn from a
presumption. Thus, in the majority of states where a presumption is not
evidence, the jury will likely see it as the mere procedural device it is and
not give it undue weight.
Stipulations
Other facts may be presented during a trial without formal proof being
required. These are facts upon which the parties and their attorneys agree.
This agreement may take place either before or during the trial. Once
agreement has been reached, it will not be necessary to call witnesses to
present the facts. Rather, the facts to which they have all stipulated will be
told to the jury at the proper time, either by one of the attorneys or the
judge. The jury will be instructed that these facts included in a stipulation
are to be taken into consideration in arriving at a verdict.

Stipulations are usually made concerning facts that are relatively

unimportant to the trial, or to facts about which there is little or no dispute.
The primary reason for a stipulation is to save trial time and expense. In
addition, stipulations are generally seen with chain of custody issues.

Occasionally, though, an attorney may offer to stipulate to a fact in order to

avoid the emotional impact a witness’s testimony may have on the jury. In
that situation, the opposing side may not agree to the stipulation. For
example, in the case in which the defendant alleged that he attended the
Odeon Cinema on the night of April 13, the prosecution could have
stipulated to those facts to avoid the necessity of the theater manager
appearing as a witness. His testimony did not actually prove any significant
fact involved in the case. There was no allegation that the movie Black
Panther had not been showing on the night of April 13. However, the
defense attorney might refuse to accept the prosecutor’s offer to stipulate in
order that the defendant’s alibi be supported, even circumstantially, by
someone other than his relatives.
Review and Application
Summary
1. The four general categories of evidence are (1) testimony of witnesses;
(2) real, or physical, evidence; (3) documents, or writings;
and (4) demonstrative evidence, i.e., visual or audiovisual aids for
the jury.

2. Relevant evidence is evidence with any tendency to make the

existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.

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3. Relevant evidence may be excluded if it has a tendency to unduly

prejudice or inflame the minds of the jury, will cause confusion or
create too many side issues, is so remote or speculative that only a
weak logical inference can be drawn from it, or is inadmissible based
on other rules of evidence or other laws.

4. Contradictory evidence is evidence used to prove a fact contrary to

what has been asserted by a party or witness, whereas corroborative
evidence is evidence that is supportive of other evidence already given,
tending to strengthen or confirm the prior evidence.

5. Judicial notice is the process or act by which a judge accepts a fact as

true, without requiring formal proof, where that fact either (1) is
generally known within the territorial jurisdiction of the trial court or
(2) can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.

6. A court may judicially notice (1) the existence and content of public
laws; (2) geographical facts, such as boundaries and location of streets
 and highways; (3) the existence and meaning of common words,
phrases, and abbreviations; and (4) many facts about time, days, and
dates.

7. A true presumption consists of a basic fact and a presumed fact.

8. The existence of a basic fact is the basis for presuming the existence of
a presumed fact.

9. Two examples of rebuttable presumptions are (1) people intend the

ordinary consequences of their voluntary acts and (2) the date on a
writing is accurate.

10. A stipulation is a particular fact or group of facts upon which the

parties and their attorneys agree. A stipulated fact need not be proven
by evidence and is simply told to the jury by one of the attorneys or the
judge.

Key Terms
relevant evidence 58

balancing test 59

material evidence 60

prima facie evidence 62

prima facie criminal case 62

contradictory evidence 62

corroborative evidence 62

cumulative evidence 62

judicial notice 63
 presumption 67

inference 67

conclusive presumption 68

true presumption 68

burden of proof 70

production burden 70

persuasion burden 70

rebuttable presumption 70

mandatory presumption 71

stipulation 74

Questions for Review

1. What are four general categories of evidence?

2. Describe what makes evidence relevant.

3. What are some reasons for excluding relevant evidence from trial?

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4. How is contradictory evidence different from corroborative evidence?

5. What is judicial notice?

6. Name some types of facts that can be the subject of judicial notice.

7. What are the two factual components of a true presumption?

8. How is a presumed fact related to a basic fact?

 9. What is the main characteristic of a rebuttable presumption?

10. How does a stipulation work?

Thinking Critically about Evidence

1. Relevant evidence often is excluded because it is unfairly prejudicial.
Photographs of the scene of a homicide are most likely to generate a
defense objection as to prejudice. Can you think of ways to reduce the
potential for unfair prejudice that might be produced when
photographs of a homicide scene are exhibited?

2. A defendant is suspected of armed robbery of a bank. The robbery was

very dramatic and received major media coverage. One of the facts
reported is that a clear set of fingerprints was discovered at the scene.
After the robbery and before his arrest, the defendant went to a plastic
surgeon and had his fingers surgically altered. Is this evidence relevant
to the pending robbery charge? Explain.

Workplace Applications
1. John Jones is under suspicion for having murdered his wife to collect
her life insurance. An officer assigned to the investigation observes
Mr. Jones at a jewelry store buying an expensive diamond ring. The
officer follows him and sees him visit a woman known to be his close
friend. Mr. Jones enters her home and spends the night there. Based on
these facts and observations, the officer decides to seek a search
warrant for the woman’s home in order to get the ring as evidence in
the murder investigation. Draft a statement of the rationale spelling out
the inferences necessary to support the request for the warrant. Note
ways that the inferences may be confirmed by the search.

2. Three people were involved in the robbery of a local computer store—

the defendant, an unknown masked accomplice who entered the store
with him, and the driver of an automobile that the trio used to get
away. A passerby noticed the plates of that vehicle as the robbery was
 in progress and reported it to the police. The vehicle was later traced
and discovered to have been stolen two days before the robbery. The
day after the robbery, the car was recovered and the defendant’s
fingerprints were found on the passenger door panel. Is this evidence
admissible at the defendant’s trial for the robbery charge? Explain why
or why not.

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Endnotes
1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591
(1993). The full moon example stated in the text was used by the Court
in Daubert’s majority opinion.

2. Fed. R. Evid. 201(b).

3. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);

Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999).

4. Rock v. Arkansas, 483 U.S. 44 (1987).

5. Id.

6. The California presumption of paternity referred to in the text still

exists, Cal. Fam. Code §7540; however, the presumption can now be
rebutted by blood test evidence [Cal. Fam. Code §7541 (West 2018)]
or by other factors [Cal. Fam. Code §7611 (West 2018) (certain
provisions of the Uniform Parentage Act)]. In fact, it is possible for
there to be competing presumed fathers, in which case the courts must
determine which of them shall be declared the father ultimately. In
other words, a presumption of paternity, even one declared to be
conclusive, is rebuttable now under California law. See In re Jesusa V.,
85 P.3d 2 (Cal. 2004).

7. Leary v. United States, 395 U.S. 6 (1969).

8. 18 U.S.C. §17 (West 2018).

 9. Cooper v. Oklahoma, 517 U.S. 348 (1996).

10. Sandstrom v. Montana, 442 U.S. 510 (1979).

11. Mullaney v. Wilbur, 421 U.S. 684 (1975).

12. Patterson v. New York, 432 U.S. 197 (1977).

Design Element: ©Ingram Publishing

Page 78

Witnesses—Competency and
Privileged Communications

Gregory Rec/Portland Press Herald/Getty Images

Page 79

Chapter Outline

Introduction

Who Is a Competent Witness?

Children as Witnesses
 Persons of Questionable Mental Stability

Judges and Jurors as Witnesses

Privileged Communications

Introduction

General Principles

Competency Versus Privileged Relationships

Husband and Wife Relationship

Spousal Incapacity or Disqualification

Marital Communications Privilege

Information Gained Before Marriage

Crime or Fraud Exception

Communication Between Husband and Wife Heard by Third Persons

Parent-Child Privilege

Attorney-Client Privilege

When Is the Privilege Created?

Communications Made in the Presence of a Third Person

The Communication Between Attorney and Client

Crimes Exception to Attorney-Client Privilege

Waiver of the Privilege

Physician-Patient and Psychotherapist-Patient Privileges

Physician-Patient Privilege

Psychotherapist-Patient Privilege
 Exceptions to Privilege

Clergy-Communicant Privilege

Identity of Informer Privilege

Accountant-Client Privilege

News Reporter–News Source Privilege

Review and Application

Chapter Objectives

This chapter introduces the basic concepts of evidence used in the American legal
system. After reading this chapter, you will be able to:

Explain the qualifications required to be considered competent to be a

witness.

List the three characteristics that constitute witness capacity.

State the rationale for privileged communications.

Explain the difference between the spousal incapacity and marital

communications privileges.

State when the attorney-client privilege is created.

Describe two exceptions to the physician-patient privilege that often make

the rule irrelevant.

Explain why there is no compelling need for a physician-patient privilege,

according to the United States Supreme Court.

State the strong policy justifications for the psychotherapist-patient

privilege.

State when the government may refuse to reveal the identity of an informer.

Explain when the news reporter–news source privilege yields.

Page 80

Introduction
Most of the evidence in any trial is presented through the oral testimony of
witnesses. Therefore, the rules of evidence pertaining to witnesses deserve
thorough study. A witness is a person who has some knowledge about the
facts of a case. The testimony of a witness is taken under oath (or
affirmation) in a trial. An oath is a solemn, formal declaration or promise to
testify truthfully, calling on God as witness. An affirmation is a solemn
declaration given in place of an oath by a person who conscientiously
objects to taking an oath.

The common law rule required that a witness be competent. The trial judge
determined the competency of a witness, and there were many grounds for
incompetency, including tender (young) age, old age, infirmity of mind,
lack of religious beliefs, prior criminal conviction, and an interest in the
outcome of the case. These historical standards no longer hold true.

FRE 601 states: “Every person is competent to be a witness unless these

rules provide otherwise.” Under the FRE, only judges and jurors sitting in
the case on trial are declared incompetent to testify. Generally, the only
requirements for a person to be able to testify are that the individual have
personal knowledge of facts pertinent to the case, have the ability to
understand the obligation to tell the truth, and willingly take an oath (or
affirm) that he or she will tell the truth. No mental or moral qualifications
for testifying as a witness are specified in the federal rules.

In a criminal trial, the witnesses must appear personally to face the

defendant. This requirement stems from the Confrontation Clause of the
Sixth Amendment of the United States Constitution, which states: “In all
criminal prosecutions, the accused shall … be confronted with the witnesses
against him.” Because of the Confrontation Clause, it is not usually possible
to use a witness’s written statement in a criminal case. In certain
circumstances, a witness’s written statement—an affidavit (a sworn written
statement), a declaration (another name for an affidavit), or a deposition
(sworn testimony under questioning before trial and usually in a private
office, not in a courtroom)—may be introduced in a criminal trial under the
hearsay rule or one of its exceptions. The circumstances in which out-of-
court “testimonial” statements, whether written or oral, may be admitted
into evidence depend upon satisfaction of the Confrontation Clause, as well
as the hearsay rule. This, as well as the hearsay rule in general, is discussed
in Chapter 7. However, because a witness must face the accused in a
criminal trial, the following discussion of the rules of evidence for
witnesses will be confined, for the most part, to oral testimony.

MYTH FACT
A person must
Other than being able to demonstrate personal
demonstrate a
knowledge of facts pertinent to the case on trial and to
certain mental
understand the obligation to tell the truth, no mental
fitness in order to
fitness is required of a person in order to be a witness.
testify.
Page 81

Who Is a Competent Witness?

The primary purpose of a trial is to arrive at the truth in a particular case. In a
trial, it is mandatory to have persons who will tell the truth when they testify. The
common law rule viewed certain categories of persons as being unable to testify
truthfully. These common law restrictions have been abolished in most states.
Today, in federal courts and all states except for Arkansas, where the state
constitution provides that atheists are not competent, all persons are competent to
be a witness. The absence of a religious belief, a lack of mental capacity, being a
party to a suit, or having been convicted of a crime does not make a person
incompetent as a witness. The presence of any of these conditions may affect the
weight of the testimony in the eyes of the jury, but it will not prevent the person
from becoming a witness.

Although everyone is competent to testify, a person must possess three basic

characteristics in order to be a witness. They are the ability to perceive,
remember, and narrate in an understandable manner. These three characteristics
make up witness capacity. A fourth element of capacity, sincerity, is sometimes
added, but the advisory committee to the FRE noted that “it seems merely to be
an aspect of the three already mentioned.”1

In addition to the basic capacity mentioned previously, in most states, an

individual must meet three requirements in order to be a witness: (1) A person
must have personal knowledge of facts relevant to the case; (2) a person must
understand the obligation to tell the truth; and (3) a person must take an oath (or
affirm) that he or she will testify truthfully. A person who possesses witness
capacity and meets the other three requirements is qualified to testify. Therefore,
it is more accurate to talk about qualifying to be a witness rather than to speak in
terms of competency to be a witness. Nonetheless, many lawyers and judges still
speak of witness competency when discussing the qualifications of witnesses.

There are some problems that recur in qualifying a person to testify as a lay, or
ordinary, witness. Is a child too young to understand or communicate? Is a person
too mentally feeble to understand or communicate? What about drug addicts or
alcoholics? When these problems arise, the trial judge will usually hold a hearing
out of the presence of the jury to decide the questions relating to the witness’s
qualification. This hearing or process is often referred to as a witness voir dire of
the witness. However, if the question presented is whether the witness has
personal knowledge of the facts related to the case, the members of the jury will
usually listen to the witness’s testimony and decide for themselves whether they
believe the witness has personal knowledge.

Children as Witnesses
Since all persons are competent to testify under the law of most American
jurisdictions, even a young child can be a witness. The common law rule was that
a child under the age of seven was too young to be competent. That is not the law
in most jurisdictions today. However, when a child is very young, even the basic
questions of capacity and ability to understand the obligation to tell the truth can
arise. The judge will have to determine if the child is able to understand what is
going on around him or her, to remember events, to relate the knowledge
intelligently to others, and to appreciate what it means to tell the truth. If a child
meets this test, the child can testify. For example, one court approved the trial
court’s acceptance of a 6-year-old as a witness in a child sexual assault case. The
prosecutor asked the child if she knew what it meant to tell the truth and the child
answered “yes.” The prosecutor then asked whether she knew what happened if
one did not tell the truth and the child answered “you get punished.”2

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ON THE JOB

When interviewing small children as witnesses, taking their statements, and

writing reports based on this information, the law enforcement officer should
approach them in much the same manner as the judge does. The officer should
ask the child questions to determine if he or she understands the need to tell the
police the truth and the consequences of lying to the police, as well as determine
if anyone has told the child to lie to the police.

For example, the officer can ask these questions: Do you know what it means to
tell the truth? Do you know what it means to lie? What happens to you if you lie?
Usually, the child will indicate some sort of punishment as a consequence of
lying. From this interchange, the officer should be able to assess whether the
child can be trusted. This is very similar to the questioning the judge will use at
the hearing or trial.
The burden of proving to the satisfaction of the judge that a child is qualified to
testify rests upon the side producing the child as a witness. It is not necessary that
the child understand the oath as such, but the child must know that he or she must
tell the truth when testifying. In the voir dire hearing, the usual procedure is for
the judge to ask the child whether it is wrong to “tell a lie,” or a similar inquiry. If
a child has learned that telling a falsehood brings punishment, this is sufficient to
prove that the child knows the necessity for telling the truth.

Age, therefore, is no longer a barrier to becoming a witness. If this were not the
case, most child-molesting cases would go unprosecuted because of the
unavailability of the principal witness, the child victim. In cases involving young
victims, the Confrontation Clause of the Sixth Amendment and the hearsay rule
may prevent out-of-court statements of absent child victims from being admitted
into evidence against a criminal defendant. If a youthful victim is found incapable
of testifying, the victim’s statements can only be introduced against a defendant if
deemed to be “non-testimonial” and fall within certain hearsay exceptions. The
Confrontation Clause, the hearsay rule, and its exceptions are explained in
Chapter 7.

Finally, the argument is often made, usually by the accused, that caution should
be exercised in permitting a very young child to become a witness because of
possible injustice to the defendant as a result of some imaginary act of
misconduct the child may have invented or had planted in his or her mind. These
issues must be addressed when evaluating the credibility of the child.
Investigators must exercise great care when initially talking to young children to
avoid planting ideas in their minds. It is up to the judge and jury in the final
analysis, however, to evaluate the defense claim that the child is not credible. As
it is argued by lawyers, these questions go to the weight of the evidence, not
admissibility.

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Application Case

In the summer of 1984, John Stoll was accused of being the ringleader of a band
of child molesters and pornographers in Bakersfield, California. Stoll and his
friends constituted one of eight alleged child molestation rings in town, allegedly
committing a litany of sex acts against children, authorities said. The “witch
hunts,” as critics called them, were the first in a wave of multiple-victim child
molestation cases to sweep the nation in the mid-1980s.
Stoll had long maintained his innocence, claiming there was no evidence for any
of the charges. No indecent photographs were ever found, and the child victims,
including his own son, were never examined by a physician. As in many of the
cases, Stoll’s conviction was based almost solely on the testimony of child
witnesses, who defense attorneys maintained had been badgered and brainwashed
by overzealous investigators. In early 2004, four of the alleged victims trooped to
the witness stand to describe horrifying treatment, not at the hands of Stoll but of
law enforcement and prosecutors. Investigators cajoled, badgered, and even
threatened them to convince them to testify to sex acts they now said never
happened. On May 1, 2004, Stoll’s conviction on 17 counts of child molestation
was overturned due to improper questioning of the child witnesses.3

To address the very sensitive problems related to questioning child victims and
witnesses, training is available to help child abuse investigators learn the proper
protocol for interviewing young children. This training helps ensure that the
information the child gives is both admissible and believable. In cases in which
the child is the victim of a crime, it may be advisable to have the child’s
testimony taken some place other than in the presence of the defendant in the
courtroom. Taking into account how stressful such a situation is for a child, the
Supreme Court of the United States approved the use of closed-circuit televised
testimony in Maryland v. Craig.4 The defendant in such a case still has the right
to confront the child witness, but the Court held that as long as the defendant, trial
court, and jury could observe the witness while testifying, the defendant’s right to
confrontation is satisfied. Most states permit the use of closed-circuit television
testimony or video recorded deposition testimony of child victims, enabling such
witnesses to avoid facing their accused abusers. See Figure 4–1, a map showing
which states permit closed-circuit and video recorded testimony of child
witnesses. As Figure 4–1 shows, as of 2022, 4 states permit video recorded
testimony only, 15 states permit closed-circuit or video recorded testimony, 3
states allow alternative methods that amount to closed-circuit testimony, and 1
state has no legal provision. All the remaining 27 states allow closed-circuit
testimony only.
 FIGURE 4–1 States that allow child victims to testify via closed-
circuit TV or video recorded deposition.

Persons of Questionable Mental Stability

In addition to children, persons who are mentally challenged, are senile, have
been declared mentally unbalanced, or are drug addicts or alcoholics may also
become witnesses because they may still have lucid moments. In most
jurisdictions, the only requirement is that they meet the same test as any other
person, that is, demonstrate basic capacity (the ability to perceive, remember, and
narrate) and qualify to testify (possess personal knowledge of relevant facts,
understand the obligation to tell the truth, and take an oath [or affirm] that they
will testify truthfully).
Page 84

Judges and Jurors as Witnesses

Under the common law rule, there were certain circumstances under which a
judge could be called as a witness. However, FRE 605 declares that a judge
presiding at trial may not testify as a witness. A judge not presiding at trial is held
to the same competency standards as everyone else.

FRE 606 provides that, like the presiding judge, a member of the jury is
incompetent to testify in the trial in which the juror is sitting. Also, once a verdict
has been reached, neither side can delve into the juror’s mind or emotions during
deliberations to cloud the validity of the verdict. A juror may only testify on the
question of whether “extraneous prejudicial information” or “outside influence”
was brought to the juror’s attention or had some bearing upon any juror.

Application Cases

The rule prohibiting evidence of jurors’ deliberative process is the subject of two
major United States Supreme Court decisions. The first is Tanner v. United
States.5 In that case, the Court held that FRE 606(b) barred jury testimony on
drug an alcohol use by jurors during trial. Then, in Warger v. Shauers,6 the Court
held that Rule 606(b)(2)(A)’s exception for evidence of “extraneous prejudicial
information” did not apply to allow one juror’s affidavit of what another juror
said in deliberations to demonstrate that juror’s dishonesty during voir dire. The
dishonesty revealed in the affidavit was that the juror did not truthfully disclose
her bias. During voir dire, she said she could impartially decide the case and
award damages; however, during deliberations she revealed that her daughter had
been at fault in an accident similar to the one at trial and that a lawsuit would
have ruined her life. In short, the Supreme Court found that the juror’s
deliberation statements could not be admitted into evidence in both cases.

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Finally, more recently, the Supreme Court rendered another decision involving
this no-impeachment rule, this time allowing evidence of a comment made by a
juror during deliberations. In Pena-Rodriguez v. Colorado,7 the Court held that
the no-impeachment rule must give way where compelling evidence indicates that
a juror relied on racial stereotypes or animosity to convict a criminal defendant.
The trial court needed such evidence in order to assess the possible denial of the
Sixth Amendment’s jury trial guarantee.
Privileged Communications
Introduction
Special circumstances may arise under which a person may refrain, or be
prohibited, from testifying concerning certain matters or information. This
condition occurs when a person is in possession of information gained as a
result of certain confidential relationships. Public policy in the United
States seeks to encourage and protect select relationships. These
relationships are of such importance that society is willing to protect them
by maintaining the secrecy of confidences exchanged during such a
relationship. By removing the fear that the confidences might be revealed in
court, the law promotes the relationship. Legally, such exchanges of
confidential information are known as privileged communications. If a
privilege exists, evidence of any communication made within the privilege
is barred from any legal proceeding, unless the privilege is waived or an
exception to the privilege exists.

FYI

Sometimes jurors submit to media interviews after rendering a verdict,

especially in high-profile cases. The evidence rule that declares jurors
incompetent as witnesses is consistent with this phenomenon. Any
statements made by jurors in the media are not evidence. Even if a juror
revealed something to the media about the deliberation process, such
information could not be used as evidence unless the juror revealed that
there was an outside influence brought to bear upon the jury.

Recognition of a privilege may result in important relevant information

being excluded in the trial of a particular case. However, the policy of the
law is that maintaining privileged communications as secrets between those
involved outweighs the benefit that society would derive from their
disclosure. Privileged relationships are strictly limited because any privilege
claimed can act as a block to uncovering the truth during a trial. Since
privileges prevent the full disclosure of the facts in a trial, they are not
favored in the law.

Some privileges were recognized by the common law in accordance with

principles that can be simply stated:8

The public … has a right to every man’s evidence. When we come to

examine the various claims of exemption, we start with the primary
assumption that there is a general duty to give what testimony one is
capable of giving, and that any exemptions which may exist are
distinctly exceptional.

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The justification for an exception from the general rule against privileges
could be found only for “public good transcending the normally
predominant principle of utilizing all rational means for ascertaining the
truth.”9 In other words, there must be strong public interest in fostering a
relationship in order for a privilege to be recognized in the law of evidence.

In addition to the fostering of relationships, privileges are sometimes based

upon reason. For example, in the clergy-communicant relationship, a priest
would not disclose the confidence, whether or not there existed a privilege,
because the rules of the church prohibit disclosure. If there were no
attorney-client privilege, a lawyer, who has a duty to zealously represent his
or her client, might feel compelled to lie in order to fulfill that duty of
zealous representation.

FYI

Privileges are not favored in the law. Most states have constitutional and
statutory privileges. Some have common law privileges. In any event, if
there is no specific privilege recognized, it does not exist. Therefore, it is
typical for a state to have a statute such as the following from Kentucky:10

1. Except as otherwise provided by constitution or statute or by these or

other rules promulgated by the Supreme Court of Kentucky, no person
 has a privilege to:

1. refuse to be a witness;

2. refuse to disclose any matter;

3. refuse to produce any object or writing; or

4. prevent another from being a witness or disclosing any matter or

producing any object or writing.

The relationships and circumstances giving rise to a privilege are, therefore,

limited and unique. An eminent legal scholar has helpfully stated four
fundamental conditions that must be established before a person is
exempted from testifying in a judicial proceeding based on a claim of
privilege:11

1. The parties to a communication must believe that their communication

is confidential and will not be disclosed to others;

2. this element of confidentiality must be essential to the full and

satisfactory maintenance of the relationship between the parties;

3. the relationship must be one which, in the opinion of the community,

ought to be promoted and protected; and

4. the injury that would be caused to the relationship by the disclosure of

the communications must be greater than the value of the conversation
to the proper resolution of the court case.

The third condition requires that the relationship be one that the community,
and therefore the law, wishes to foster. A limited number of such
relationships are recognized as giving rise to privilege, though not all are
recognized in all states. Included in these relationships are

1. husband and wife;

2. parent and child;

 3. attorney and client;

4. physician and patient;

5. psychotherapist and patient;

6. clergy and communicant;

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7. law enforcement officer and informant;

8. accountant and client; and

9. news reporter and news source.

Because of the importance of these relationships, each will be discussed in

detail.

There are also many worthy relationships that the law does not recognize as
privileged. Most jurisdictions do not recognize a parent-child privilege.
This relationship, like that of attorney-client and husband-wife, is one in
which the persons may feel compelled to lie rather than to reveal
confidences. Thus, in a way, the failure of the law to recognize the
relationship as a privileged one may be encouraging perjury. Other
relationships that are not universally recognized as privileged include
accountant-client, newsperson–news source, and other counseling
relationships, such as social worker–patient, sex abuse counselor–client,
and domestic violence advocate–victim.

In 1972, the Chief Justice of the United States transmitted to Congress the
Proposed Rules of Evidence for United States Courts and Magistrates. The
rules had been formulated by a committee that reported to the Supreme
Court and had been approved by a conference of the federal judiciary and
by the Supreme Court. The Proposed Rules defined nine testimonial
privileges:

1. required reports;
 2. lawyer-client;

3. psychotherapist-patient;

4. husband-wife;

5. communications to clergy;

6. political vote;

7. trade secrets;

8. secrets of state; and

9. identity of informer.

Congress rejected this recommendation and instead adopted FRE 501,

which states:

The common law—as interpreted by United States courts in the light

of reason and experience—governs a claim of privilege unless any of
the following provides otherwise:

the United States Constitution;

a federal statute; or

rules prescribed by the Supreme Court.

But in a civil case, state law governs privilege regarding a claim or

defense for which state law supplies the rule of decision.

Thus, the only federal privileges would be those recognized in the federal
common law that existed at the time, plus any privileges recognized in
subsequent judicial decisions. The common law privileges then existing
probably included attorney-client and husband-wife and, perhaps, some
others. However, it was the intent of Congress to “reflect the view that the
recognition of a privilege based on a confidential relationship … should be
determined on a case-by-case basis.”12 Since the adoption of the FRE, at
least through 2022, the Supreme Court has altered one major existing
common law privilege (the husband-wife privilege in Trammel v. United
States13) and adopted a new common law privilege (the psychotherapist-
patient privilege in Jaffee v. Redmond14) pursuant to this language. In this
latest move, the Court stated: “The Rule [501] thus did not freeze the law
governing the privileges of witnesses in federal trials at a particular point in
our history, but rather directed federal courts to ‘continue the evolutionary
development of testimonial privileges.’ ”15

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The effect of the Supreme Court’s actions with respect to FRE 501 and the
federal common law of privileges are discussed in the sections of this
chapter dealing with spousal privileges and the psychotherapist-patient
privilege. Equally as significant, however, is the effect of the Proposed
Privilege Rules (those privilege rules drafted but not adopted as the FRE)
upon the states. Many of the provisions of those draft rules were adopted by
various states. Thus, there is now greater uniformity among the states with
respect to the various privileges than there was before the FRE were
proposed, though some relationships, including social worker–patient,
various types of victim counselors, accountant-client, and news reporter–
source, are not recognized as privileged in many states.

General Principles
Some general principles apply to all privileges. A few of these principles
will also be discussed in the following sections dealing with specific
privileges. However, introducing the principles now will lead to a better
general understanding of the nature of privileges.

The matter of when and where a privilege may be recognized is important.

Usually, a rule of evidence applies only in court proceedings. However,
privileges are recognized in all proceedings, even those in which the rules
of evidence do not apply. For example, the rules of evidence do not apply in
preliminary determinations made by the judge, but privilege rules always
apply in all proceedings.
A privilege is held by one or more of the persons involved in the privileged
relationship. Most privileges cover only two persons, but there can be more,
for example, when two or more people consult with an attorney together.
Usually, all of the persons in the relationship hold the privilege, meaning
they are capable of asserting the privilege and therefore need not answer
questions before a judge and jury. However, if no one is present to assert the
privilege, in some circumstances, the court is obligated to assert it on behalf
of the holder. A holder of a privilege has the power to waive it.

The holder of a privilege can waive the privilege by either disclosing a

significant part of the communication or consenting to disclosure of the
communication by someone else. The waiver must be made without
coercion. Failure to claim a privilege when a holder is able to do so may
waive the privilege. If a holder of a privilege waives it for any purpose, it is
waived for every other purpose. If two or more persons hold a privilege,
such as when several people consult with an attorney, waiver by one holder
does not usually affect the right of the other to claim the privilege.

If a privilege is claimed by a holder of it but there are questions as to

whether the privilege should be recognized, the trial judge determines if the
privilege exists and to whom it belongs. This issue will be argued by
attorneys for each side in a hearing in camera, which the judge conducts for
this purpose in chambers, with only the privilege holder and the attorneys
present.

Page 89

Finally, many jurisdictions prohibit any attorney or the court from

commenting upon a person’s invocation of a privilege at trial. Where this
rule is in effect, the jury will be instructed that it may not draw any
inference from the invocation of the privilege. This instruction applies to
the credibility of the witness as well as any matter at issue in the
proceeding.

Competency Versus Privileged Relationships

Privileged relationships do not necessarily bar the persons involved from
becoming witnesses. The existence of a privileged relationship merely
restricts what testimony may be given from the witness stand. In other
words, if information is gained as a result of the confidential relationship,
the persons involved may wish to refrain or be prohibited from revealing
this information. So, a witness who has knowledge of a privileged
communication may still testify as to any matter except the content of the
privileged communication. But still the witness may testify to the privileged
communication only if the privilege holder waives the privilege. The
privilege may be waived by the privilege holder by explicitly waiving the
privilege, consenting to the testimony, or failing to claim the privilege in a
timely manner.
Husband and Wife Relationship
The relationship of husband and wife is fundamental in American society.
Therefore, it is not surprising that the law has long sought to encourage harmony
within the marital relationship by recognizing that the privacy between husband
and wife should be granted the status of a privilege. There are actually two
distinct privileges applicable to the husband and wife relationship. One is a rule
of disqualification as a witness, which is actually a rule of incompetence or
disqualification. The other is the communications privilege. Each will be treated
separately.

Spousal Incapacity or Disqualification

The rule that disqualifies one spouse from testifying against another has a long
history. It actually results from two medieval canons of jurisprudence. The first
was the rule that an accused was incompetent as a witness because of interest in
the outcome of the case. In other words, a criminal defendant, like any party to a
case was incompetent to be a witness. The second was the principle that husband
and wife were one. In 1980, the United States Supreme Court considered the
spousal incapacity privilege under federal law in the case of Trammel v. United
States.16 At the time of the decision, 33 states recognized the privilege but treated
it in three different ways under state evidence law. The Court pointed out that, in
some states, one spouse was incompetent to testify against the other in a criminal
proceeding. In other states, there existed a privilege against adverse spousal
testimony that could be asserted by either spouse or by the defendant-spouse
alone. In yet other states, only the spouse called as a witness was allowed to
assert the privilege and refuse to testify against the defendant-spouse. In the
remaining states, the privilege had been abolished in criminal cases.

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The Court in Trammel concluded that the spousal incapacity privilege is held
only by the spouse acting as a witness. The Court reasoned that “when one spouse
is willing to testify against the other in a criminal proceeding—whatever the
motivation—their relationship is almost certainly in disrepair.”17 In that
circumstance, the justification for the privilege—marital harmony—no longer
exists.
So, Trammel set the rule for federal criminal trials, not as a constitutional
requirement but as an evidence rule within the Supreme Court’s supervisory
power over the federal judiciary. Thus, the states may still design their own
evidence rules on this subject. As reflected in Figure 4–2, as of 2022, 16 states
have abolished the spousal incapacity rule; 21 follow Trammel, holding that only
the witness spouse can assert the privilege (if called as a witness); and 13 states
allow either the defendant or the witness/spouse to assert the privilege.
Remember, this is the law with respect to the spousal incapacity privilege. The
law regarding the marital communications privilege is described next.

FIGURE 4–2 Spousal incapacity rule.

Marital Communications Privilege

Up to this point, the discussion has been primarily concerned with whether one
spouse could testify for or against the other because of the marriage relationship.
Another issue is what protection should be given to information that is gained
strictly through communication during the marriage. This problem may arise in
two different situations: first, in those cases in which a spouse is willing to testify
against the other and, second, when there has been a dissolution of the marriage
and one spouse is called upon to testify about communication between spouses
during the time that the marriage was intact. It is an accepted fact that, for a
successful and wholesome marriage relationship to exist, there must be a free
exchange of communication between spouses. The law recognizes this
relationship as one in which the mutual exchange of confidential information not
only is encouraged but must take place. Consequently, the privileged
communications doctrine is made applicable to the husband-wife relationship.

Page 91

To promote the institution of marriage, any communication between spouses

during the marriage is privileged. This privilege is known as the marital
communications privilege. If the communication was intended to be a
confidential one, was communicated between spouses, did not involve a crime
upon one of the spouses by the other, and was not overheard by a third person, the
communication is privileged and cannot be the subject of testimony by a spouse,
even after the marriage has been dissolved by divorce, an annulment, or death. In
other words, situations may arise in which a spouse may not be able to testify
concerning confidential matters communicated during the marriage, even though
the couple are no longer married.

It is well known that many private conversations take place between a husband
and wife. These conversations pertain to many things, even to crimes committed
or acts of misconduct. Such communications are considered confidential. Under
the privilege, a spouse cannot reveal this information in court when the privilege
is claimed by either spouse, even after the marriage has been dissolved. A few
jurisdictions do not recognize the privileged communications doctrine when the
communication pertains to criminal acts; however, others extend the privilege
doctrine to all confidential exchanges of information, even though the marriage
has been dissolved and the information pertains to crimes. This is based upon the
theory that one spouse should not be made hesitant about revealing to the other
some secret for fear that it might someday be revealed in court should a divorce
take place. It is believed that by this freedom of exchange of confidential
information, the dissolution of marriages may be avoided.
The privilege for confidential communications between spouses is not to be
confused with information gained by one spouse concerning the other that was
not exchanged in confidence between the two. For example, assume a wife
observes her husband rob a service station. In most jurisdictions, the wife cannot
be compelled to testify against her husband as long as the marriage is intact. But,
once the marriage is dissolved, she can be compelled to testify against her former
husband because she did not gain her information as a result of any confidential
exchange of communications. On the other hand, if the wife did not see her
husband rob the service station, but the husband came home and in private told
his wife that he had committed the robbery, in most jurisdictions, the wife could
not testify about this confidential information, even though the marriage had been
dissolved.

Information Gained Before Marriage

In those jurisdictions in which the husband-wife relationship prohibits one from
testifying against the other, the prohibition relates to all matters, regardless of
when the information was gained. It includes knowledge of facts learned prior to
the marriage, as well as during the marriage. If it can be proved that the marriage
was carried out under false pretenses, i.e., that it took place merely to prevent the
testimony, the privilege will not apply, since the reason for the rule, to protect the
sanctity of marriage, does not, in fact, exist. Nor does the privilege apply in cases
in which the marriage was void from the outset, for example, an incestuous
marriage.

Page 92

Once the marriage has been dissolved by divorce or annulment, the rule
prohibiting one spouse from testifying against the other changes. Testimony
concerning information gained before marriage may then be compelled. However,
even in such cases, the spouse serving as a witness is prohibited from testifying to
the contents of communications that occurred during the marriage.

Crime or Fraud Exception

An exception to the spousal incapacity and marital communications privilege
exists when one spouse commits a crime or fraud against the other. The basis for
the privilege lies in society’s desire to foster the relationship between marital
partners. When one of the partners threatens or commits a crime or fraud upon the
other, this so threatens the fabric of the relationship as to destroy it. In short, there
is no longer any harmony in the home to protect.

For this reason, most states have enacted laws allowing a spouse to testify about
crimes or frauds threatened or committed. In most jurisdictions, the victimized
spouse can be compelled to testify, irrespective of his or her wishes.

Communication Between Husband and Wife Heard

by Third Persons
The first requirement for any confidential communication to be within a privilege
is that the communication be made in confidence. If the communication is made
directly in the presence of others, who themselves are not in a confidential
relationship with the spouses, then the first requirement is not met. Nothing
prevents the third person who overhears a communication between spouses from
revealing that communication. Therefore, communications between spouses in
the presence of others are not privileged.

Slightly different considerations are involved when spousal communications are

overhead by a third person indirectly. Two sets of circumstances may apply in
such a situation. In the first, the spouses could anticipate a third party overhearing
the communication. In the second, the couple could not anticipate being heard.
This includes a situation in which the third party is an intentional eavesdropper. In
cases in which the husband and wife speak in public, or when they should know
other people can hear them, the privilege is not recognized. For example, if a
married couple is at home with guests in the next room and they speak to one
another loud enough for the guests to hear, their communication is not in
confidence.

On the other hand, if the couple exchanges confidences under circumstances

where they would not expect anyone to overhear, the privilege still applies. For
example, assume the party is over and the couple believes all the guests have
departed, but one person remains, unobserved by the couple. If the husband and
wife were to exchange confidences not knowing of the presence of the guest, and
they could not be expected to have anticipated that anyone would overhear them,
many states would recognize the privilege. Similarly, if the husband and wife
were to exchange confidences in the privacy of their bedroom, but, unbeknownst
to them, an eavesdropper were lurking outside their bedroom, then that exchange
would be entitled to the cloak of the privilege in most jurisdictions. This is so
whether the eavesdropper gains access to the conversation by electronic means or
by simply drawing near and listening.

Page 93

If the interception of the communication is due to the betrayal or connivance of

one spouse, most jurisdictions hold that the privilege applies. The rationale is that
the spouse would not be able to disclose confidential spousal communications,
and therefore should not be able to circumvent the privilege through betrayal or
connivance.
Parent-Child Privilege
The recognition of a parent-child privilege is a recent development in the
law of the United States. Support for it has grown largely from the realities
of life. Even judges and respected members of society confess that they
would perjure themselves rather than testify against their children, which
“reflects traditions regarding the sanctity of family ties.”18 As one
commentator puts it in arguing for such a privilege,19

Imagine that your teenage child calls and asks you to pick him or her
up from a corner near the party he or she was attending. When you
arrive, you see your child’s clothing smeared with blood. Without
thinking, you ask, “What happened?” Though this instinctive human
response of a parent to a child in trouble is developmentally correct, it
is risky as a matter of law [absent a parent-child privilege], because the
same knowledge that helps the parent understand how best to help the
child exposes the parent to the risk of being served with a government
subpoena to testify against that child.

The public sentiment in favor of a parent-child privilege peaked in outraged

reaction to special prosecutor Kenneth Starr’s subpoenaing Monica
Lewinsky’s mother to learn the intimate details of Monica’s relationship
with President Bill Clinton. The sentiment grew so strong that two bills
came before Congress to enact a federal parent–child privilege, though no
laws have been enacted to date.

Many commentators and jurists support the enactment of this privilege. In

the mid-1990s, the Criminal Justice Section of the Defense Function
Committee of the American Bar Association proposed the ABA Model
Parent–Child Privileges Statute. Under the scheme envisioned by the ABA,
there are two privileges: First, Section 102 of the proposed act establishes
an adverse testimonial privilege that protects parents and children from
testifying when either is a defendant in any type of criminal proceeding,
including those before a grand jury. The privilege is inapplicable when “the
proceeding concerns an offense against the person or property of the
witness or a family member that is purported to have been committed by the
witness’s parent or child” and when there is joint criminal activity. Second,
Section 103 establishes a jointly held confidential communications
privilege that may be asserted by a parent or child when either is a party to
any proceeding, including those before a grand jury. Exceptions to the
privilege exist where the parent and child are opposing parties jointly
involved in criminal activity or where the parent or child is a party in any
criminal or juvenile proceeding, if the basis of the proceeding is alleged acts
committed against the person or property of a family member.20

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Currently, only five jurisdictions recognize a parent-child privilege: New

York’s privilege is established in a judicial decision,21 and the privileges in
Connecticut, Idaho, Massachusetts, and Minnesota are established by
statute.
Attorney-Client Privilege
The attorney-client relationship is another one in which the law recognizes
a privilege. It is mentioned in the old Roman laws and was adopted early in
English judicial procedure. There are a number of justifications for the
attorney-client privilege. One is that maintaining a confidential exchange
between an attorney and his or her client makes for a more orderly court
procedure. At one time, people brought their own cases into court and
adversaries defended themselves. As time went on, court procedures grew
steadily more complex. As a result, providing officers of the court to assist
the litigants became necessary. These officers are known as barristers,
attorneys, or lawyers, and they are still considered to be officers of the
court. It is through their efforts that the rules of evidence are followed and
that trials run more smoothly.

Another reason for the attorney-client privilege is to reduce undue or

excessive litigation. A client being free to communicate all the facts, even
unfavorable ones, to an attorney allows the attorney to assess more
accurately the merits of taking the matter to trial or whether to accept the
client’s employment at all.

FYI

An event occurred in connection with the first criminal trial of O.J.

Simpson that bears upon the issue of what constitutes an attorney-client
relationship. Mr. Simpson delivered one of his travel bags to Robert
Kardashian upon his return from Chicago, the day after the murders of
Nicole Brown Simpson and Ron Goldman. At that time, Mr. Kardashian
was not actively licensed to practice law in California because he was on
inactive status. He had not paid dues and did not need an active attorney’s
license for the work he was doing at the time. Such inactive status for
lawyers is not unusual. Since Mr. Kardashian was not then technically a
lawyer in California, he could not claim any attorney-client privilege on
behalf of Mr. Simpson with respect to the bag or its contents, unless Mr.
Simpson could claim that he believed Mr. Kardashian was still acting as a
lawyer. The issue was never litigated, however, because the prosecution
never sought to recover the bag or its contents.

Public policy in the United States demands that the exchange of information
between an attorney and a client be kept confidential. In criminal matters,
the “right to counsel” is a constitutional guarantee. If this guarantee is to be
given its full force and effect, there must be a free exchange of
communications without fear that information will work to the detriment of
the client.

The point in time at which such an attorney-client relationship is created,

and whether there is such a relationship, can be problematic. Therefore,
defining who is an attorney and who is a client becomes necessary. An
attorney is one who is authorized to practice law in a given state or nation.
A client is one who goes to an attorney seeking professional services or
advice. To be licensed, the attorney must have complied with certain rules
of the legal profession set forth in the various states’ statutes.

There is no problem in the attorney-client relationship when a client

consults an attorney who is properly licensed to practice law in the state in
which the consultation takes place. Such a person definitely falls within the
definition of an attorney. However, the status of the purported attorney is
not always so clear in some situations, such as when the attorney has failed
to renew his or her license to practice, is licensed in another state, or has
completed law school but has not taken or passed the bar examination.
Another ambiguous situation occurs when the client consults with a person
whom the client believes to be an attorney but that person is, in fact, not an
attorney. There is also ambiguity when the client communicates with an
attorney’s secretary, paralegal, investigator, or law clerk.

Page 95

In the past, these situations plagued the courts. Now, however, a majority of
jurisdictions have dealt with these problems by recognizing the privilege
whenever a client reasonably believes the person he or she is consulting is
an attorney licensed in any state or nation. Also, the attorney-client
privilege has been extended to any communication between the client and
any person present to further the interest of the client, including employees
or agents of the attorney, such as secretaries, paralegals, investigators, and
clerks.

When Is the Privilege Created?

The rules concerning the time when the relationship of an attorney and a
client is created are clear and universally recognized. The moment a client
consults an attorney on legal matters, the attorney-client relationship, and
hence the privilege, is created. This is true even if the attorney rejects the
case or the client decides to seek other counsel. The right of a client and an
attorney to confer and exchange information to enable both to make a
choice is a necessary part of the privileged-communications rule. If the
privileged-communications rule were otherwise, a client would have to
accept the first attorney who would handle a case for a fee without knowing
any facts of the case. There need be no agreement concerning payment or
fee for the attorney-client relationship to be created.

MYTH FACT
For the attorney-client The attorney-client relationship comes into being
privilege to exist, the the moment that a person consults with an attorney
client must “hire” the for legal advice, regardless of whether any
attorney or pay a payment for services is made or the attorney takes
retainer. the case.

MYTH FACT
 MYTH FACT
While a client is
There are a number of people who may be present
speaking with an
during an attorney-client consultation without
attorney, the
destroying the privilege. Anyone who is an employee or
presence of
agent of the attorney, whose presence is necessary to
another person
carry out the attorney’s mission, including secretaries,
violates the
paralegals, law clerks, investigators, and experts, will
attorney-client
not destroy the privilege.
privilege.

Page 96

Communications Made in the Presence of a Third

Person
As stated in the introduction to the subject of privileges, the first
requirement for a privilege is that the communication in question must be
made in confidence. Thus, if a client and an attorney communicate in the
presence of others, on the face of the situation, it cannot be said that the
communication was intended to be confidential. In addition, the
communication must pertain to the attorney-client relationship. The “third
person” confidentiality requirement does not apply to the presence of agents
or employees of the attorney whose presence is necessary, such as a
secretary. This also includes an agent of the client who, while acting for the
client, furnishes information to the attorney.

However, if a communication is made in the presence of someone who

accompanied the client, the privilege rule is not applicable to either the third
person or the attorney. The client, under these circumstances, will be found
not to have intended the communication to be a confidential one. On the
other hand, if the person who accompanied the client was also seeking the
services of the attorney in the same case, the privilege would be binding on
all present.
The Communication Between Attorney and Client
As in the case of the husband–wife relationship, it must be determined what
is included in a privileged communication between an attorney and a client.
In other words, does a privileged communication comprise oral and written
statements only, or does it include acts? The general view is that any
information a client furnishes to an attorney as a result of the professional
status is considered to be a privileged communication. This includes oral
and written statements and acts on the part of the client. If, during the
consultation with the attorney, the client displays a gun, a sack of money, or
scars or marks, these, too, fall within the privilege rule. These acts must
have some connection with the case about which the attorney was being
consulted in order to be covered under this privilege.

The attorney cannot be a depository for criminal evidence. The fact that the
client turned the evidence over to the attorney may be privileged, but the
attorney cannot withhold evidence from the court. Therefore, within a
reasonable time, the attorney who has come into possession of such
evidence must take steps to turn it over to the proper authorities while
maintaining the attorney-client privilege with respect to the source of the
evidence. An example of this is an infamous manila envelope delivered by
the defense to a magistrate in the O.J. Simpson criminal trial. The public
never found out what was in that envelope because it was turned over to the
magistrate (a judicial officer not involved in the trial) for her eyes only.
Trial watchers speculated that the defense found a knife that Mr. Simpson
had bought and that the prosecution was claiming was the murder weapon.
The prosecution had searched for the knife but was unable to locate it. At
the preliminary hearing, the state introduced evidence about Mr. Simpson’s
purchase of the knife, but no other evidence about the knife was ever
introduced. The world will probably never know for sure what was actually
in the manila envelope.

Page 97

A client may make a complete confession to an attorney about a crime. If

this confession is made during the consultation on the case, the attorney
cannot reveal the information. Even if the client confesses, the attorney may
still have the client enter a plea of “not guilty” and endeavor to get an
acquittal for the client. This may seem to be a parody of justice. However,
under the American system of criminal justice, and based on the
Constitution, the defense attorney is required to do this. The Constitution
places the burden of proof in a criminal case upon the prosecution, and the
defendant is presumed innocent until proven guilty beyond a reasonable
doubt by a fair trial.

Many lawyers cannot go this far with a clear conscience. Those lawyers
may find it impossible to defend a person who has confessed to a crime or
one who they think is guilty. For that reason, those attorneys will not accept
the case, which is their prerogative. In this instance, any information
exchanged between the defendant and an attorney who subsequently does
not accept the case is still considered privileged. It is important to
remember that under the American criminal justice system, even the guilty
are entitled to assistance of counsel and a fair trial.

Crimes Exception to Attorney-Client Privilege

The attorney-client privilege does not apply when a person consults an
attorney concerning the commission of a future crime or for the purpose of
concealing the defendant after a crime has been committed. The policy of
the privilege is to promote the administration of justice. It would then be a
perversion of the privilege to allow a client to seek advice from an attorney
to aid in carrying out an illegal scheme or assist in the furtherance of a
crime or fraud. If an attorney should become involved in a crime or
conspire to commit a crime, the attorney and the client become associated
in the crime and the privilege does not exist.

Waiver of the Privilege

Rarely will the accused in a criminal case be called upon by the
circumstances to waive the attorney-client privilege. However, it does
happen. It is possible for a witness to be asked to waive the privilege. The
client, as the holder of the attorney-client privilege, has the power to waive
it.
Physician-Patient and
Psychotherapist-Patient Privileges
Many people are surprised to learn that historically there was no physician-patient
privilege. The common law did not recognize it, it was not included in the FRE,
and even the Supreme Court of the United States did not recognize it. In recent
times, however, the need for privacy between doctor and patient has been deemed
important enough to warrant a privilege. And the person who seeks psychological
support has been protected even before recognition of the privilege between
patient and doctor. This is so because a patient with a mental difficulty will
frequently seek help only if assured that his or her communications will remain
totally confidential.

Page 98

Physician-Patient Privilege
The common law did not recognize a privilege for communications between
patients and their doctors. Although doctors may have been under a professional
obligation to be discreet, they could be forced to testify when called as a witness.
New York was the first state to adopt a statutory physician-patient privilege in
1828.22 Most states today have a physician-patient privilege, but a few still do not
(Alabama, Connecticut, Maryland, Massachusetts, South Carolina, and
Tennessee23). Also, there is no federal physician-patient privilege.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA),

however, authorized the United States Department of Health and Human Services
(HHS) to adopt regulations governing standards for the security and privacy of
health information. Generally, these standards provide for disclosure of medical
information only under certain conditions. In addition, the standards provide a
right of privacy for medical information to patients—i.e., they must be notified of
the circumstances under which the information will be disclosed. However, this is
not a privilege, in that, if the requester and health plan comply with HIPAA, the
information will be disclosed. Because it is a federal law, HIPAA preempts any
state laws relating to the disclosure of medical records, unless the particular
state’s law is more stringent.
Most significantly, the Proposed Rules, which have dramatically affected the state
privilege laws since the early 1970s, had no provision for a physician-patient
privilege, although they did have provision for a psychotherapist-patient
privilege. FRE 501 provides that, in cases in which the law of a particular state
applies (principally, civil cases involving diversity of citizenship suits), the
privilege law of that state also applies. However, even in such a case, if the law of
the state does provide for a physician-patient privilege, federal courts may refuse
to recognize the privilege, since there is none under federal common law.24 Even
in those states that have recognized the privilege, there are numerous exceptions
among them excluding this privilege in criminal cases. In most states, if a party
makes his or her mental or physical condition an issue in a case, the privilege is
waived. These two exceptions to the privilege make it irrelevant even in those
states where it exists. In addition, in most states doctors are required to report
gunshot wounds.

In addition to reporting gunshot wounds to the police, the attending

physician must reveal in court anything the victim tells him or her
regarding the circumstances of the shooting.

Elnur/Shutterstock
Page 99

MYTH

FACT
The physician-patient privilege is not universal; it does not exist in
The
common law, in federal common law, and in a number of states. If,
physician-
while investigating a case in Alabama, Kentucky, Maryland,
patient
Massachusetts, South Carolina, Tennessee, or West Virginia, a law
privilege is
enforcement officer encounters a doctor who is withholding
universally
pertinent information, the officer could remind the physician of this
recognized.
fact.

There is a twofold rationale for the physician-patient privilege. First, the privilege
exists in the interest of maintaining the patient’s privacy in matters pertinent to
medical diagnosis and treatment. Second, similar to the attorney-client privilege,
the law’s policy promotes full and free communication between patient and
physician. In the absence of the privilege, patients may be deterred from giving
the doctor complete information. However, this justification is not universally
accepted. In the 1996 case of Jaffee v. Redmond,25 a case that actually dealt with a
person seeking psychotherapy, the United States Supreme Court also addressed
the issue of physician-patient privilege. The Court pointed out that there is no
compelling need for confidences in the physician-patient setting. The Court stated
that “treatment by a physician for physical ailments can often proceed
successfully on the basis of a physical examination, objective information
supplied by the patient, and the results of diagnostic tests.”26

Psychotherapist-Patient Privilege
The psychotherapist-patient privilege is even newer than the physician-patient
privilege, but it is recognized in all 50 states, the District of Columbia, and, since
June 1996, all federal courts.27 Most states place the physician-patient and
psychotherapist-patient privileges in the same statute or code provision. However,
in many states, the two privileges are separate, and the reach of the
psychotherapist privilege is much greater than that of the physician privilege
because the class of professionals qualifying as psychotherapists is quite broad.
The breadth of the privilege is necessary to extend coverage to patients who seek
psychotherapy from a nonphysician therapist. The psychotherapist-patient
privilege is supported by stronger policy justifications than the doctor-patient
privilege; as a result, some states have adopted only the therapist-patient
privilege. A psychotherapist is more likely to be the recipient of damaging,
embarrassing, and personal information than an ordinary doctor. Moreover,
deterrence is a more significant consideration. Patients would be less likely to go
to a psychotherapist if there were a threat that information exchanged would be
made public.

Page 100

A patient within this privilege is any person who consults a psychotherapist or

physician for the purpose of the diagnosis or the treatment of a mental or
emotional condition. A psychotherapist is a person who has been authorized to
practice medicine and devotes a substantial portion of his or her time to the
practice of psychiatry or a person who is recognized by the laws of the particular
jurisdiction as a certified psychologist. Thus, the privilege applies to licensed
psychiatrists and psychologists. However, a number of jurisdictions extend the
privilege to other licensed professionals who engage in psychotherapy, for
example, licensed social workers and various types of victim counselors, such as
sexual abuse and domestic violence counselors.

Application Case

In Jaffee v. Redmond,28 the United States Supreme Court recognized a

psychotherapist-patient privilege under federal law. In doing so, the Court relied
upon FRE 501’s authority to create common law privileges when reason and
experience require it. Moreover, the Court declared that the privilege extends not
only to licensed psychiatrists and psychologists but also to licensed social
workers engaged in psychotherapy.

In Jaffee, the survivors of a man shot and killed by a police officer sued the
officer and the village by which the officer was employed. The officer was
responding to the scene of a “fight in progress” when the shooting occurred. The
officer later participated in over 50 counseling sessions with a licensed clinical
social worker. The plaintiffs wanted access to the social worker’s notes to use at
the trial. The Supreme Court held that the notes contained privileged
communications and, therefore, could not be obtained or used by the plaintiffs.
Confidences expressed by the patient that may assist in the diagnosis or treatment
by a psychotherapist are privileged, even though they may pertain to criminal
matters. Generally, there is little in the way of physician-patient communication
that would pertain to criminal matters and would assist the physician in the
treatment of the patient. In the case of a psychotherapist, however, it may be
necessary for the patient to make a full disclosure of crime-related facts that may
be causing some mental or emotional disturbance in order for proper treatment to
take place. This disclosure could even entail confession. In these circumstances,
the communications are privileged.

Page 101

Exceptions to Privilege
There are a few situations in which the psychotherapist-patient privilege is not
recognized. One instance is when an accused is charged with a criminal act and
raises the defense of insanity or mental distress, thus making the accused’s mental
state an issue. The need to have access to the accused’s mental processes by both
the prosecution and defense has led to an exception to the privilege in most
jurisdictions.

Application Case

The California Supreme Court, in Tarasoff v. Regents of University of

California,29 held that, when a therapist determines, or pursuant to the standards
of his or her profession should determine, that his or her patient presents a serious
danger of violence to another, the therapist incurs an obligation to use reasonable
care to protect the intended victim against such danger. In Tarasoff, a college
student at a University of California campus consulted a university therapist for
depression, making statements that he intended to harm a woman friend whom he
viewed as having jilted him. The therapist, after consulting with colleagues,
decided not to break the confidentiality of the therapy sessions and did not take
any steps to identify, locate, and warn the woman mentioned by the patient. The
patient went to the woman’s home and murdered her. The case involved the right
of the woman’s family to sue the university.

Another exception to the privilege exists in most states if the psychotherapist has
reasonable cause to believe that the patient is in such mental or emotional
condition as to be dangerous to himself or herself, or to another person or
another’s property, and that disclosure of the communications is necessary to
prevent the threatened danger. This is called the dangerous patient exception to
the privilege. There is yet another exception to the privilege that exists in most
states: if the psychotherapist has reasonable cause to believe that the patient is
involved in child or elder abuse, as either the perpetrator or the victim.

Application Case

In Menendez v. Superior Court,30 the California Supreme Court considered a

claim of the psychotherapist-patient privilege. The Menendez brothers were
charged with murdering their mother and father. In the case, the prosecution
sought to obtain from the brothers’ psychotherapist audiotapes containing
recordings of four therapy sessions in which information was transmitted in the
course of the relationship. The prosecution wished to use the tapes at the brothers’
trial. The therapist-patient privilege was asserted. The court found that the tapes
of all four therapy sessions were privileged communications, but it also found
that the tapes of two of the sessions were admissible in evidence as being within
the dangerous patient exception to the psychotherapist-patient privilege.

Page 102

The court held that the two tapes were not privileged because they involved
threats by the brothers against the doctor, the doctor’s spouse, and the doctor’s
lover, and disclosure was necessary to prevent any harm. Under the dangerous
patient exception, the court held that the doctor was authorized to disclose the
danger to the people threatened because the doctor had a duty to avert danger to
others. In addition, however, the court held that the dangerous patient exception
also acts to destroy the privilege generally. The protective privilege ends when
public peril begins. Therefore, the portions of the audiotapes that contained
threats to the doctor or others were not privileged and were admissible in
evidence.
Clergy-Communicant Privilege
The common law did not recognize a privilege for the exchange of
information between a member of the clergy and a parishioner. Nonetheless,
as a practical matter, the law had to adjust to accept the privilege because
Catholic priests were forbidden to break the secrecy of the confessional and
would rather go to prison than reveal communicants’ confessions. A
privilege protecting confidential communications between clergy and
communicants has now been adopted in all of the 50 states and is
recognized as part of the federal common law.31

The practicality of this privilege was recognized early in Anglo-American

history. Even one of the great eighteenth-century criminal justice thinkers,
Jeremy Bentham, an arch-critic of privileges in general (and the attorney-
client privilege in particular), acknowledged the futility of trying to force
the clergy to breach the seal of the confessional.32 Clergy who are bound by
secrecy of the confessional will not violate that trust, regardless of the
command of the civil law. Therefore, it is understandable that the civil law
developed a privilege recognizing this reality. Moreover, because of our
society’s religious heritage, public policy demands that a person be
permitted to confess sins and seek spiritual guidance without the fear that
those confessions will be revealed.

A member of the clergy is a priest, minister, religious practitioner, or similar

functionary who has been ordained by a religious denomination or
organization. Today, the term “religious advisor” is commonly used in the
criminal justice system as a generic description. A communicant is one who
seeks out the clergy in a religious capacity for the purpose of securing
spiritual advice. In most jurisdictions, the privilege has developed to cover
any person who desires to speak in confidence to someone in the
professional role of a spiritual advisor.

In the past, in order to fall within the privilege, the communication must
have been a confession. Most jurisdictions today, however, define any
communication for purposes of spiritual guidance as a privileged
communication. A penitential communication is any communication
between the penitent and the clergy that was made in confidence to assist
the penitent in receiving spiritual aid. Just how far this definition can be
extended is difficult to determine. For example, a penitent asking a minister
to hide a gun used in a crime, or a sack of money stolen in a crime, would
not be considered a penitential communication. However, the privilege
might apply if the request is made in connection with the penitent’s desire
to repent and then to take some action toward absolution.

Page 103

A majority of jurisdictions consider the clergy-communicant relationship

primarily for the benefit of the communicant and therefore hold that only
the communicant may claim or waive the privilege. However, there are
instances in which the law has granted the clergy the right to refuse to
disclose a communicant’s communication, even though the communicant
has waived the privilege. This right has been granted to the clergy in some
jurisdictions because certain religious denominations hold that it is a
violation of church principles for the clergy to reveal penitential
communications under any circumstances.

Legislators and courts have generally held that for a penitential

communication to come within the privilege, the member of the clergy and
the communicant do not have to belong to the same faith. All that is
necessary is that the communicant seek the member of the clergy for the
sincere purpose of spiritual guidance.
Identity of Informer Privilege
The identity of informer privilege is an offshoot of the well-established
governmental privilege protecting military and state secrets established by
the common law. The common law governmental privilege protects the
government against compulsory disclosure of military, diplomatic, or other
state secrets when it is in the best interest of the people to do so. This
common law privilege has been embodied in the statutes of the various
states and has been enlarged upon to permit government officials to keep
certain information confidential. The statutes creating this privilege usually
state words to the following effect: “The government has a privilege to
refuse to give evidence and to prevent any person from giving evidence
upon a showing of reasonable likelihood of danger that the evidence will
disclose a secret of state or official information.”33 The identity of informer
privilege that has been adopted in most jurisdictions is often patterned upon
the language contained in the Proposed Federal Rules of Evidence:34

The government or a state or subdivision thereof has a privilege to

refuse to disclose the identity of a person who has furnished
information relating to or assisting in an investigation of a possible
violation of law to a law enforcement officer or member of a
legislative committee or its staff conducting an investigation.

Such a statute, or rule of evidence, permits a law enforcement officer to

withhold the identity of an informer unless disclosure is necessary to the
defendant’s fair trial on the merits. The purpose of this right was stated by
the United States Supreme Court in the case of Roviaro v. United States, in
which the Court said:35

The purpose of the privilege is the furtherance and protection of the

public interest in effective law enforcement. The privilege recognizes
the obligation of citizens to communicate their knowledge of the
commission of crimes to law enforcement officials and, by preserving
their anonymity, encourages them to perform that obligation.
Page 104

Although the Court spoke of the obligation of a person to report crimes to

officials, generally there is no legal obligation as such to report knowledge
of a crime. The common law provides that it is a crime to have knowledge
of a serious crime and not report it. This crime is known as “misprision of a
felony.” Today, “misprision of a felony” is not a crime in most states;
however, it is still a crime under federal law. In the Roviaro case, the courts
realized that there is a need to encourage those who have such knowledge to
come forward and report it. Common sense suggests that under certain
circumstances, a person may be reluctant to report information about
criminal activities unless it can be done in complete secrecy.

Although the identity of informer privilege has been recognized, it is not

absolute. The Roviaro case recognized the limitations upon the privilege:36

The scope of the [officer-informant] privilege is limited by its

underlying purpose. Thus, where the disclosure of the contents of a
communication will not tend to reveal the identity of an informer, the
contents are not privileged. Likewise, once the identity of the informer
has been disclosed to those who would have cause to resent the
communication the privilege is no longer applicable.

A further limitation on the applicability of the privilege arises from the

fundamental requirements of fairness. Where the disclosure of an
informer’s identity, or of the contents of his communication, is relevant
and helpful to the defense of the accused, or is essential to a fair
determination of a cause, the privilege must give way. In these
situations the trial court may require disclosure and, if the government
withholds the information, dismiss the action.

Thus, the identity of the informer may be required to be disclosed when

there is a full trial on guilt or innocence and the accused needs the
information in order to have a fair trial. As the Roviaro Court also stated,
however, there is no fixed rule, and “the problem is one that calls for
balancing the public interest in protecting the flow of information against
the individual’s right to prepare his defense.”37 On the other hand, it is not
necessary for the prosecution to reveal the identity of an informant who has
provided information for a determination of probable cause under most
circumstances. The United States Supreme Court, in McCray v. Illinois,38
held that, where the officer testifies to the underlying information provided
by an informer supporting a probable cause determination, the officer need
not identify the informer. The Court pointed out that the Roviaro case did
not involve a preliminary hearing, but the trial on the issue of guilt or
innocence. McCray held that nothing in the Constitution required the
privilege to be waived under the circumstances.

As a result of the right of discovery in many states, which is discussed in

detail in Chapter 12, the number of instances in which an officer has had to
reveal the identity of the informant has deprived the identity of informer
privilege of some of its significance. Furthermore, if knowledge of the
existence, identity, or communications from an informer would provide
evidence tending to exonerate the accused, the prosecution has an
obligation to reveal such evidence to the defense under the Supreme Court’s
rule announced in Brady v. Maryland.39 The Brady rule is also discussed in
detail in Chapter 12. Finally, the Freedom of Information Act (FOIA),
passed by Congress in 1966, and similar statutes passed by some state
legislatures require the government to turn over information to the public
upon request, with certain exceptions. Under the FOIA, the government is
exempted from releasing information pertaining to confidential informants,
but only if the government shows that the information was given with the
express or implied promise that the identity of the informant would remain
confidential. However, the determination of the status of information as
confidential under the FOIA does not mean that if the defendant needs the
information to achieve a fair trial the government may withhold the
information when discovery in a criminal trial requires disclosure of the
information.

Page 105

Application Case

In United States Department of Justice v. Landano,40 an inmate convicted

of murder of a police officer sought to obtain FBI files under the FOIA. The
government claimed that it was entitled to a presumption that all sources
supplying information to the FBI in the course of a criminal investigation
are confidential sources entitled to protection against release of information
under a certain provision of the FOIA. The Court held that no such
presumption exists. The Court also noted that either discovery rules or the
Constitution might require divulgence of the identity of an informer,
including the circumstance where the informer was required to testify at
trial. Even so, the Court held that the FOIA does not require release of an
informer’s identity and the information provided, if the informer’s
statement was initially given in confidence. Thus, even though the
government is not entitled to a blanket exception from the FOIA for all
informers’ information, neither does the FOIA permit blanket release of
informers’ confidences merely because they might be discovered in a
criminal trial under the discovery rules or the principles of Roviaro and
McCray.
Accountant-Client Privilege
The common law holds no provisions for testimonial privilege for
communications between a person and his or her accountant. Communications to
accountants are privileged in 43 states (see Figure 4–3). No such privilege exists
in federal law in criminal cases; however, since July 1998 there has been a federal
confidentiality privilege relating to taxpayer communications. A communication
between a taxpayer and a federally authorized practitioner is a privileged
communication if it would be a common law privileged communication between
a taxpayer and an attorney. This privilege only applies to any noncriminal tax
matter before the Internal Revenue Service and any noncriminal tax proceeding in
federal court brought by or against the United States.

FIGURE 4–3 States that have adopted the accountant-client privilege.

Federal courts dealing with issues in state cases have even refused to apply the
state accountant-client privilege statute but have adhered to the common law
rule.41 The state privileges are narrow, applying mostly to communications
between clients and certified public accountants. Most have a crime-fraud
provision like the attorney-client privilege and do not allow the privilege to
interfere with bankruptcy proceedings.
Page 106

News Reporter–News Source Privilege

The protection of news reporters against the compulsory disclosure of sources of
information was not recognized as common law, but a qualified privilege has
been recognized by the federal government and a number of states. Prior to 1972,
news reporters sought to have news sources recognized as privileged. They did
not want to have to reveal sources of information or even to be compelled to
appear before grand jury hearings or other judicial proceedings. Reporters
claimed this privilege under the “freedom of the press” guarantee of the First
Amendment to the United States Constitution.

This First Amendment-based privilege was rejected by the United States Supreme
Court in Branzburg v. Hayes,42 in which the Court ruled that the First
Amendment guarantee of freedom of the press does not afford any privilege to a
newspaper reporter from appearing before a grand jury or other judicial
proceeding, nor from revealing the identity of news and information sources. The
Court in that case stated:43

The public through its elected and appointed law enforcement officers
regularly utilizes informers, and in proper circumstances they may assert a
privilege against disclosing the identity of these informers. But the purpose
of the privilege is the furtherance and protection of the public interest in
effective law enforcement. … [But] such informers enjoy no constitutional
protection. Their testimony is available to the public when desired by the
grand juries or at criminal trials; their identity cannot be concealed from the
defendant when it is critical to his case. …

As noted previously, the common law recognized no such [news reporter]

privilege, and the constitutional argument was not even asserted until 1958.
From the beginning of our country, the press has operated without
constitutional protection for press informants, and the press has flourished.
The existing constitutional rules have not been a serious obstacle to either
the development or retention of confidential news sources by the press. …

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 We see no reason to hold that [news] reporters, any more than other citizens,
should be excused from furnishing information that may help a grand jury in
arriving at its initial determinations.

The Branzburg decision merely held that the First Amendment guarantee of
freedom of the press did not automatically grant a news reporter–source privilege.
That decision did not bar Congress or state legislatures from passing statutes that
would grant some protection to news reporters relating to their news sources. As a
result, many courts and state legislatures have, by judicial decision (4 state courts
have adopted the qualified privilege) and by statute (41 states and the District of
Columbia have enacted the privilege), granted the newspaper reporter the
qualified privilege of not being held in contempt of court for refusing to reveal a
source of information (see Figure 4–4). Most federal courts that have considered
the issue have held that a qualified news reporter’s privilege exists under federal
law.44 The privilege is qualified in the sense that the reporter’s claim of privilege
in any given case will be weighed by the trial judge to determine whether the
information sought is vital to the prosecution or defense of a criminal case. If the
trial judge determines that the information is vital, then the news reporter’s
privilege will yield. If the reporter refuses to reveal the information, he or she will
be held in contempt until the information is forthcoming.
 FIGURE 4–4 States that have adopted the news reporter–source
privilege.

Two other issues relating to the news reporter–news source privilege are who is
covered by the privilege and what information is within the privilege. The statutes
that have been enacted granting a news reporter protection against revealing a
news source have specified that those covered by the privilege include publishers,
editors, reporters, and other persons connected with or employed by a newspaper,
magazine, or other periodical publication or by a radio or television station. The
privilege usually covers the information discovered by the reporter, including the
sources and background data. Also included are the reporter’s notes, photographs,
tapes, and edited materials. Usually, it is the source of the information that is
protected and not the information itself, as was stated in the case of Lightman v.
State:45

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 The Maryland [news reporter’s privilege] does not protect against the
disclosure of communications; it privileges only the source of the
information and the privilege is not that of the informant but of the
newsman. … Where a newsman, by dint of his own investigative efforts,
personally observes conduct constituting the commission of criminal
activities by persons at a particular location, the newsman, and not the
persons observed, is the “source” of the news or information [and the
privilege does not apply].

Thus, a news reporter may not refuse to appear in a judicial proceeding and
furnish the requested information when commanded to do so without being held
in contempt of court, but the news reporter may refuse to reveal the source of that
information without being held in contempt in those jurisdictions in which the
privilege is recognized.
Review and Application
Summary
1. In a majority of jurisdictions, everyone is competent to be a witness.
But, in order to qualify to testify, a person must demonstrate personal
knowledge of facts pertinent to the case on trial and to understand the
obligation to tell the truth.

2. The three characteristics that constitute witness capacity are the ability
to perceive, remember, and narrate in an understandable manner.

3. The rationale for privileged communications is best expressed in the

four conditions necessary for a privilege to exist:

1. The parties to a communication must believe that their

communication is confidential and will not be disclosed to others.

2. This element of confidentiality must be essential to the full and

satisfactory maintenance of the relationship between the parties.

3. The relationship must be one which, in the opinion of the

community, ought to be promoted and protected.

4. The injury that would be caused to the relationship by the

disclosure of the communications must be greater than the value
of the conversation to the proper resolution of the court case.

4. The spousal incapacity privilege allows a spouse to refuse to testify

against another spouse if called upon to do so during the marriage. The
marital communications privilege operates to keep confidential all
communications made during the marriage. The incapacity privilege is
held by the witness-spouse and ends when the marriage ends. The
communications privilege is held by both spouses and continues even
after the marriage ends.
 Page 109

5. The moment a client consults an attorney on legal matters, the

attorney-client relationship, and hence the privilege, is created.

6. The two exceptions to the physician-patient privilege that often make

the rule irrelevant are the exception in criminal cases and the waiver of
the privilege in civil cases if a party makes his or her mental or
physical condition an issue in a case.

7. Treatment by a physician for physical ailments can often proceed

successfully on the basis of a physical examination, objective
information supplied by the patient, and the results of diagnostic tests.

8. The strong policy justification for the psychotherapist-patient privilege

is that a psychotherapist is more likely to be the recipient of damaging,
embarrassing, and personal information than an ordinary doctor.
Moreover, deterrence is a more significant consideration. Patients
would be less likely to go to a psychotherapist if there were a threat
that information exchanged would be made public.

9. The government may refuse to reveal the identity of an informer

except at trial or such other time when it is found by the trial judge to
be necessary to preserve the defendant’s right to a fair trial.

10. The news reporter’s qualified privilege to refuse to reveal a news

source yields when the trial judge finds that the information is vital for
the prosecution or defense of a criminal case.

Key Terms
incompetency 80

witness capacity 81

qualifying to be a witness 81

witness voir dire 81

 privileged communications 85

Proposed Privilege Rules 88

holder of a privilege 88

hearing in camera 89

spousal incapacity privilege 90

marital communications privilege 91

attorney 94

client 94

patient 100

psychotherapist 100

dangerous patient exception 101

clergy 102

communicant 102

news reporter 107

Questions for Review

1. What are the general requirements for a person to be a witness?

2. What are the characteristics of witness capacity?

3. What is the rationale for privileged communications?

4. What is the spousal incapacity privilege? How does the marital

communications privilege differ?
 5. At what point in time is the attorney-client privilege created?

Page 110

6. What aspect of the physician-patient privilege makes that privilege

irrelevant in criminal cases?

7. Why, according to the United States Supreme Court, is there no

compelling need for a physician-patient privilege?

8. What is the policy behind the psychotherapist-patient privilege?

9. When can the government refuse to reveal the identity of an informer?

10. When must a news reporter reveal his or her source?

Thinking Critically About Evidence

1. You are having some remodeling done on the roof of your house and
want to have a valid contract drawn up with the roofer. A good friend
introduces you to her cousin and tells you that he practices “all kinds
of law.” You talk to the cousin and never ask any questions, but the
cousin gives you the advice “on the house,” telling you that the
contract is fine. Six months later, when the snow is packed six inches
high on your leaking roof, you discover that not only was the cousin’s
advice wrong but he had never been to law school and had received all
his legal knowledge as a jail-house attorney during his latest prison
sentence. Do you have any recourse?

2. According to the attorney-client privilege, attorneys must “seal their

lips” if their client confesses to a crime and enter a “not guilty” plea if
the client requests it. However, if the same client brings evidence of
the same crime to the attorney, the attorney is required to turn it over to
the prosecution. Why must attorneys keep a client’s confession
confidential but turn over any evidence revealed by their client?

3. Your neighbor is a used car salesman, yet he frequently buys new boats
and furniture and takes exotic vacations. Recently, he claimed another
 one of his wealthy relatives had died, leaving him with yet another
small fortune. You read in the local newspaper that your neighbor is
suing his attorney for malpractice and embezzlement of client funds.
You have been friends with the attorney since elementary school and
believe her when she says that the car salesman has really been
embezzling money from the car dealership. Is there any way that the
attorney can prove her innocence without violating the attorney-client
privilege?

Workplace Applications
1. You have been working in the Narcotics Unit for several years and
have primarily focused on cocaine trafficking from South America.
You have a confidential informant from Mexico who ranks high in an
extremely violent cocaine ring that you have been targeting for about a
year. The informant fed you confirmed, invaluable information for
about six months prior to the biggest cocaine bust in the history of
your state. The informant agreed to give you information only after
you agreed to her complete anonymity and confidentiality. You are
now called to testify at the preliminary hearing of several members of
the drug ring who have been indicted. The defense attorneys are
demanding to know the informant’s identity, so that they can call the
informant. Write down the reasons that the informant’s identity should
not be revealed. Will the informant be required to testify? Why or why
not?

Page 111

2. Assume you are a police officer and are at the department’s

Policeman’s Ball. You strike up a conversation with a man whom you
previously did not know and discover that he is an attorney. Because
you have been having landlord problems lately, you casually ask what
your legal rights are in case the situation gets worse. You buy the man
a drink but do not pay him for his advice, get his name, or even get his
business card. Has an attorney-client privilege relationship begun?
 3. Assume you are a police officer assigned as a canine handler and have
just been named in a lawsuit. You, the rest of the officers on the scene,
and the city council are being represented by the city attorney’s office.
The attorney in charge of your case sets a meeting to discuss the facts
of the case; when you arrive, she tells you she is on her way to an
unexpected meeting with a judge. She tells you that her capable law
clerk is knowledgeable about the case and will be able to conduct the
meeting. You discover that the law clerk is in her first year at law
school. You discuss the case with the clerk without the attorney
present. Has an attorney-client privilege been established?

Ethical Dilemma
1. A citizen tells you that he will give you information only if you keep it
confidential. The information is very valuable, but you know that you
cannot keep it a secret if asked about it in court. The citizen is
insistent. Do you give your word as an officer and agree to keep the
information confidential, knowing that legally you can’t?

Endnotes
1. Advisory Committee’s note preceding Article VIII of Federal Rules of
Evidence.

2. Reckard v. State, 234 A.2d 630, 633 (Md. Ct. Spec. App. 1967).

3. John Johnson, Conviction Tossed After 19 Years, Los Angeles Times,

May 1, 2004, at B.

4. 497 U.S. 836 (1990).

5. 483 U.S. 107 (1987).

6. 574 U.S. 40, 135 [Link]. 521 (2014).

7. 580 U.S. 206 (2017).

 8. Jaffee v. Redmond 518 U.S. 1, 9 (1996), citing United States v. Bryan,
339 U.S. 323, 331 (1950) (quoting 8 John H. Wigmore, Evidence §
2192, p. 64 (3d ed. 1940)).

9. Id., citing Trammel v. United States, 445 U.S. 40, 50 (1980), quoting
Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J.,
dissenting).

10. Kentucky Rules of Evidence, Rule 501.

11. David Louisell, Confidentiality, Conformity and Confusion: Privileges

in Federal Court Today, 31 Tul. L. Rev. 101, 109–15 (1956), quoting
Dean Wigmore.

12. S. Rep. No. 93-1277, p. 13 (1974), as cited in Jaffee v. Redmond, 518

U.S. 1, 8 (1996).

13. 445 U.S. 40 (1980).

14. 518 U.S. 1, 116 S. Ct. 1923 (1996).

15. Id., at 8–9, quoting Trammel v. United States, 445 U.S. 40, 47 (1980).

16. 445 U.S. 40 (1980).

17. Id. at 52.

18. Catherine J. Ross, America—Implementing Constitutional Rights for

Juveniles: The Parent-Child Privilege in Context, 14 Stan L. & Pol’y
Rev. 85, 86 (2003).

19. Id.

20. The proposed ABA Model parent-child Privilege Statute was

described in the case of In re Grand Jury Proceedings, Unemancipated
Minor Child, 949 F. Supp. 1487 (E.D. Wash. 1996).

21. In re A & M (People v. Doe), 403 N.Y.S.2d 375 (N.Y. App. Div. 1978)
(common law recognition of a parent-child privilege through the
 constitutional right to family privacy); People v. Fitzgerald, 422
N.Y.S.2d 309, 312 (N.Y. App. Div. 1979) (extending the parent-child
privilege to an older child; holding that the privilege is not limited to
minors); In re Ryan, 474 N.Y.S.2d 931, 931 (N.Y. Fam. Ct. 1984)
(recognizing a grandmother as a parent for parent-child privilege
purposes). But see People v. Hilligas, 670 N.Y.S.2d 744, 747 (N.Y.
Sup. Ct. 1998) (rejecting Fitzgerald for independently living adults).

Page 112

22. 8 John H. Wigmore, Evidence § 2280, p. 819 (McNaughten rev. 1961).

23. 98 C.J.S. § 374 (March 2022 Update).

24. United States v. MHC Surgical Centers Associates, Inc., 911 F. Supp.
358 (N.D. Ind. 1995).

25. 518 U.S. 1 (1996).

26. Id. at 10.

27. Id. at 13.

28. 518 U.S. 1 (1996).

29. 551 P. 2d 334 (Cal. 1996).

30. 834 P. 2d 786 (1992).

31. In re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990) reviews the
development of the clergy-communicant privilege in the federal courts.
See also Russell G. Donaldson, Annotation, Communications to
Clergyman as Privileged in Federal Proceedings, 118 A.L.R. Fed. 449
(1994) (Updated Weekly West 2018).

32. J. Bentham, 4 Rationale of Judicial Evidence 588–91 (1st ed. 1827), as

quoted in John H. Wigmore, 8 Evidence § 2396 (McNaughten rev.
1961).
 33. The quoted language is that of Proposed Fed. R. Evid. 509.

34. Proposed Fed. R. Evid. 510.

35. 353 U.S. 53, 59 (1957).

36. Id. at 60–61 (footnotes omitted) (emphasis added).

37. Id. at 62 (emphasis added).

38. 386 U.S. 300 (1967).

39. 373 U.S. 83 (1963).

40. 508 U.S. 165 (1993).

41. Couch v. United States, 409 U.S. 322, 335 (1973). There is no
“justification for such privilege where records relevant to income tax
returns are involved in criminal investigation or prosecution.”

42. 408 U.S. 665 (1972).

43. Id. at 667–99, 702 (footnotes omitted).

44. Schoen v. Schoen, 5 F.3d 1289, 1292 & n.5 (9th Cir. 1993) (reviews
the cases, by federal circuit, which have held that the privilege exists).

45. 294 A.2d 149, 156–57 (Md. App.), aff’d per curiam, 295 A.2d 212,
cert. denied, 411 U.S. 951 (1972).

Design Element: ©Ingram Publishing

Page 113
Page 114

Witnesses—Lay and Expert

Portland Press Herald/Getty Images

Page 115

Chapter Outline

Becoming a Witness

Attendance of Witnesses
 Method of Subpoenaing Witnesses

Out-of-State Witnesses

Segregation of Witnesses, or the Rule on Witnesses

Lay, or Ordinary, Witnesses

Methods of Interrogating Witnesses

Opinion Testimony of Lay Witnesses

Terminology of Lay Witnesses

Expert Witnesses

Definition of an Expert Witness

The Foundation for Expert Testimony

Qualifying the Expert: Voir Dire

Testimony of the Expert Witness

Kinds of Expert Witnesses

Refreshing Recollection

Past Recollection Recorded

Investigative Report as a Means of Refreshing Recollection and

Past Recollection Recorded

Laying the Foundation for Past Recollection Recorded

Review and Application

Chapter Objectives

This chapter explores the basic elements related to serving as a witness, both lay
and expert. After reading this chapter, you will be able to:
State the one essential characteristic required before a person may become a
witness.

Name the two rights the Constitution guarantees to an accused person that
assure the accused may call witnesses on his or her behalf.

Define a leading question.

List five exceptions to the rule prohibiting leading questions on direct

examination.

Define impeachment.

Name the five methods of impeachment.

List the subjects typically within the purview of lay opinion.

State the circumstances under which testimony may be introduced.

Explain how a witness may be qualified as an expert.

List the three foundational requirements for an expert’s testimony.

State the three bases for expert opinion.

Explain when and how a witness’s recollection may be refreshed.

List the steps that must be taken before a witness’s recorded recollection
may be admitted into evidence.
Page 116

Becoming a Witness
A person becomes a potential witness by having personal knowledge about the
facts of a case that is going to trial. Personal knowledge may have been acquired
through something seen, heard, smelled, or touched. A law enforcement
professional who is called as a witness usually has gained knowledge through
individual investigation of a case or a certain portion of the case. Witnesses are
called upon during the course of a trial to relate their knowledge. Witnesses are
seldom surprised when they are called to testify, especially in criminal cases.
Before most criminal trials, law enforcement professionals conduct extensive
investigations and usually advise the persons being interviewed that they may be
called upon as a witness.

Although many people willingly serve as witnesses, others, for a variety of

reasons, serve reluctantly. Some wish not to become involved; some fear reprisal;
others fear cross-examination. Still others may wish to cooperate but are reluctant
to lose time at work. Trials are unpredictable. Often the flow of the trial is such
that witnesses appear on the date and time planned, only to find they are not
needed until some other day. This necessitates taking another day from work to
return each time a case is set for trial—a procedure that can become expensive for
a wage earner.

However, an individual does not always have a choice whether or not to appear as
a witness. Anyone with information that may be of value in arriving at the truth in
a trial may be compelled to be a witness. This power to compel a witness to
attend a trial is based on two clauses appearing in the Sixth Amendment to the
Constitution of the United States: the Confrontation Clause and the Compulsory
Process Clause. The Confrontation Clause provides that “the accused shall enjoy
the right … to be confronted with the witnesses against him.” The Compulsory
Process Clause states that “the accused shall enjoy the right … to have
compulsory process for obtaining witnesses in his favor.” Both of these rights are
available to the accused in federal and state trials.

Application Case
The Supreme Court of the United States held that the Confrontation Clause
applies to the states through the Fourteenth Amendment’s Due Process Clause in
the case of Pointer v. Texas.1 In that case, the Court stated:

The Sixth Amendment is a part of what is called our Bill of Rights. In

Gideon v. Wainwright [372 U.S. 335 (1963)] in which this Court held that
the Sixth Amendment’s right to the assistance of counsel is obligatory upon
the States, we did so on the ground that “a provision of the Bill of Rights
which is fundamental and essential to a fair trial is made obligatory upon the
States by the Fourteenth Amendment.” … We hold today that the Sixth
Amendment’s right of an accused to confront the witnesses against him is
likewise a fundamental right and is made obligatory on the States by the
Fourteenth Amendment.

Page 117

It cannot seriously be doubted at this late date that the right of cross-
examination is included in the right of an accused in a criminal case to
confront the witnesses against him. … The fact that this right appears in the
Sixth Amendment of our Bill of Rights reflects the belief of the Framers of
those liberties and Safeguards that confrontation was a fundamental right
essential to a fair trial in a criminal prosecution.

Likewise, the Compulsory Process Clause has been applied to the states via the
Fourteenth Amendment by the United States Supreme Court.2 This right is not
absolute. Favorable testimony can be excluded if it is incompetent, irrelevant,
privileged, or inadmissible under the rules of evidence.3 Further, a violation of a
rule of procedure, such as discovery rules, can cause a court to constitutionally
exclude such favorable testimony.4 Although the Compulsory Process Clause of
the Sixth Amendment does not create an absolute right, it is important to note that
a criminal defendant is entitled to government assistance in obtaining witnesses
favorable to him or her.5

Attendance of Witnesses
To ensure that a witness appears to testify, most lawyers will compel the witness’s
attendance by issuing a subpoena. A subpoena is an official document issued by a
judge, the clerk of a court, or an attorney and delivered to, or “served upon,” the
witness. See Figure 5–1 for an example of a subpoena in a criminal case. In
criminal cases, the subpoena sets forth the name of the defendant to be tried and
the name of the person called as a witness, and it orders that person to appear at a
specific time and place and to remain in attendance until released. If the person
has papers, records, or other physical evidence needed for the trial, the person
will be served with a subpoena duces tecum. This subpoena also directs the
person to bring specific material to court.

FIGURE 5–1 Sample witness subpoena form–criminal.

Naturally, a person does not have to be served with a subpoena to become a

witness; he or she may appear voluntarily or at the oral request of an attorney
representing either side. However, if a witness does not appear in accordance with
an oral request, it is not a violation of a court order and no penalty can be
imposed. A witness’s failure to appear in response to a subpoena, however, is a
violation of a court order and subjects the violator to the full range of judicial
sanctions. For this reason, the usual procedure is to serve a subpoena on each
person desired as a witness, even those who are “friendly” and who voluntarily
agree to appear.

MYTH FACT
 MYTH FACT
Trials are smoothly running operations, Trials are unpredictable, slow moving
beginning on schedule and remaining on at best, and most often proceeding in
schedule until completion. The fits and starts. The watchwords are
watchwords are “smooth sailing.” “hurry up and wait!”

Page 118

There can be severe consequences for failing to honor a subpoena or subpoena

duces tecum. The court can hold a recalcitrant person in criminal contempt.
Sanctions for criminal contempt of court can be a monetary fine, imprisonment,
or both. If the court chooses to imprison the person, the imprisonment will be for
a fixed period of time and may continue even if the person later submits to the
court’s authority. Should a person answer a subpoena but intentionally refuse to
give testimony or produce the physical evidence ordered, the court may find the
witness in civil contempt. The court may order the uncooperative witness placed
in jail until the witness complies with the orders of the court.

Method of Subpoenaing Witnesses

In most jurisdictions, the attorneys (either the defense attorney or prosecutor)
issue their own subpoenas to compel the appearance of a witness. In a few
jurisdictions, the clerk or judge must issue the subpoena, and the attorneys’ duty
is to furnish to the clerk a list of persons who are needed as witnesses. Although
in most states anyone may serve a subpoena, in criminal cases, the subpoenas are
usually given to an officer of the court—a deputy sheriff, a constable, or a
marshal—to be served on the person named in the subpoena. The service of the
subpoena consists of personally handing the subpoena to the person. In some
jurisdictions, sending the subpoena by certified mail or leaving the subpoena at a
witness’s home or place of work is acceptable as proper service.

It is the duty of all citizens to testify when needed. Organized society is based on
the civic contribution of its members. It is also considered to be an inherent right
of our courts to compel a person to appear as a witness. Few circumstances will
excuse a person from attendance as a witness—the needs of the criminal justice
system take precedence over the convenience of the witness. Being a witness is
deemed to be a civic duty owed by a person to society; therefore, a witness at a
criminal trial may or may not be compensated, depending on local law.

Page 119

ON THE JOB

Imagine that you are a homicide detective, sitting at your desk, when suddenly
the shift lieutenant walks through and drops 20 subpoenas into your basket.
“Prelim in three weeks,” he growls. “The D.A. wants to interview these people as
soon as possible; find them.” The case is a seven-year-old homicide. Experience
tells you that you’ll probably find a few people locally, but the long period of
time since the crime occurred means many of the potential witnesses have moved
away.

There are several places to start, but most commonly you read through the police
and district attorney’s files first and note any phone numbers of parents or other
relatives and friends. Phone calls to these old numbers, with patient explanations
and subtle inquiries, will lead to your next level of contacts. Contacting old
business numbers may provide more information. Don’t ignore the obvious. A
quick check of area phone books often yields surprising results. Also check jail
records and the department of corrections. If the person being sought has a
criminal record, he or she may have been arrested or incarcerated.

The next level involves technology—use of an Internet search on the name, a 50-
state driver’s license check, a criminal history report from the FBI, and a credit
profile utilizing a credit reporting company, such as TRW. In extreme cases,
assistance by the Internal Revenue Service assures that most, if not all, of the
subpoenas will be served. One final tip: Technology is fine, but develop good
people skills and learn to listen when people talk to you.

There may be a limit placed upon how far a witness may be required to travel in
order to testify without being compensated. Legally, a subpoena is valid
anywhere within the state in which it is issued. But if a witness is required to
travel from one county to another, or within a prescribed distance, the witness is
usually paid a mileage fee and some small compensation for the expenses
involved. Generally, when a witness resides in a county other than the one in
which the subpoena is issued, the court issuing the subpoena will designate on the
subpoena that the witness is material to the trial and will be compensated for
appearing at the trial.
Out-of-State Witnesses
As pointed out earlier, a subpoena is valid only within the state in which it is
issued. Consequently, in the past, when a material witness in a criminal trial
resided in another state, compelling an appearance could be a problem. But,
today, all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands
have addressed this issue by adopting the Uniform Act to Secure the Attendance
of Witnesses from Without the State in Criminal Cases. This act permits a court to
issue a subpoena to an out-of-state witness and to have the subpoena sent to a
court in that state. The witness will be commanded to appear in that court, where
a hearing will be held to determine whether he or she is a material witness. If it is
determined that the witness is material, he or she will be ordered to appear in the
court where the original subpoena was issued. A witness who fails to appear as
ordered may suffer the same contempt sanctions as a witness within the state.
Again, the witness is entitled to compensation for appearing.

Page 120

Segregation of Witnesses, or the Rule on Witnesses

Although the defendant in a criminal trial is entitled to a public trial, it is not
unusual to exclude the witnesses from the courtroom during the trial. This is
known as the rule on witnesses. The reason for segregating or excluding the
witnesses is to prevent witnesses from hearing each other’s testimony and being
affected by it, either intentionally or unintentionally. From a practical standpoint,
a complete separation of the witnesses is almost impossible. They may still meet
in the halls of the courthouse during recesses or at other times when the trial is
not in session. However, the rule on witnesses is designed to prevent the most
overt form of witnesses’ collaboration. Judges will also direct witnesses not to
discuss their testimony among themselves while waiting to appear in the
courtroom. Witnesses are often placed in a hallway or a separate room and
monitored by an officer of the court. This, of course, does not prevent witnesses
from talking with one another away from the courthouse.

FYI

It is common for the law enforcement professional in charge of a criminal

investigation to sit at counsel table with the prosecutor to assist in the
presentation of the case, even though the officer is a witness at the trial and the
judge invokes the rule on witnesses. The same is true for any person who is a
party to the case or an expert who assists either lawyer.

ON THE JOB

Most people in the community consider the courthouse a place where the serious
business of the law takes place. However, on more and more occasions, this
solemnity has given way to gunshots as the legal process has inadvertently
brought together warring factions. Gang violence is probably the most common,
but feuds between individuals and groups of all sorts also occur. For example, in a
scheduled preliminary hearing on a homicide case, a courtroom in Las Vegas took
on an international flavor as witnesses and victims from Honduras came face to
face with witnesses and defendants from San Salvador, two groups who had been
locked in combat for many years. Although no violence ensued, the situation was
extremely tense.

It is the law enforcement officer’s responsibility to inform the prosecutor of any

conflicts between the parties in a case that might erupt into violence in the
courtroom. If the prosecutor is not concerned by the threat of violence, the officer
should at least speak with the bailiff of the court. The bailiff has special training
in courtroom security and is handpicked by the presiding judge.

The law enforcement officer must remain vigilant in the courtroom. This was
made clear once again in July 2016, when Larry Darnell Gordon, who was a
county jail inmate awaiting court appearance on several charges, in an apparent
escape attempt, tried to take hostages inside the Berrien County Courthouse in St.
Joseph, Michigan. He shot and killed two bailiffs and wounded a deputy, when he
himself was shot dead.
Page 121

Lay, or Ordinary, Witnesses

Witnesses have been classified into two categories: (1) lay, or ordinary, witnesses
and (2) expert witnesses.

A lay witness is a person who has some personal knowledge about the facts of the
case and who has been called upon to relate this information in court. The law
enforcement officer will usually fall within the lay witness category, but other law
enforcement professionals more frequently testify as experts, too. The lay witness
is permitted to testify about facts only and, with few exceptions, may not state
personal opinions. This restriction on opinions or conclusions may be most
frustrating to the witness. Much of our daily conversation is made up of
conclusions and opinions. When a witness is prohibited from making such
statements on the stand, he or she may become virtually tongue-tied. As a result,
the method in which a witness relates information becomes very important to the
court proceeding.

Methods of Interrogating Witnesses

The Federal Rules of Evidence have traditionally viewed it as improper for an
attorney to ask leading questions of the witness during direct examination. A
leading question is one that suggests to the witness the answer sought by the
questioner. The law prefers open-ended, or non-leading, questions on direct
examination because leading questions are, by definition, suggestive. Leading
questions could induce a witness to inadvertently adopt the questioner’s
suggestion. This is especially likely when the attorney posing the leading question
prepared the witness to testify and the witness has some relationship with the
party represented by that attorney.

One of the major functions of the trial attorneys is to aid witnesses in properly
relating their story while on the stand. Thus, although leading questions are
generally improper during direct examination, tradition and the FRE6 allow some
exceptions to this rule. These exceptions occur (1) with respect to undisputed
preliminary or inconsequential matters; (2) when a witness is hostile, unwilling,
frightened, or biased; (3) with respect to a child or adult witness who has
difficulty communicating; (4) when a witness’s recollection is exhausted; and (5)
when laying a necessary foundation under certain circumstances. All five of these
exceptions relate to the need to develop the witness’s testimony under specific
circumstances. In addition, a lawyer sometimes finds it necessary during direct
examination to attack the credibility of a witness (impeach the testimony). When
that occurs, the examination becomes a cross-examination, and leading questions
are permitted.

Unless one of the previously mentioned exceptions applies, direct examination

must be by non-leading questions. Nonetheless, the questions may be highly
directive, requiring only a short answer, and may even be answered simply “yes”
or “no” without being condemned as leading. As long as the answer is not
suggested in the question, the question is not, technically, leading.

There is a spectrum of suggestiveness, ranging from completely closed-ended

leading questions to questions that direct the witness to the subject matter but are
technically not leading. An example of a closed-ended leading question is “You
saw the defendant hit the victim over the head with a beer bottle, didn’t you?” An
example of a question that directs the witness to the subject matter but is less
leading is “As you were standing in the bar, did you see the defendant strike the
victim?” A lawyer who uses the latter form frequently, or with respect to critical
facts, would surely be called for leading. On the other hand, a lawyer who uses
such a form of question sparingly, and only in regard to noncritical facts, would
probably not be interrupted by an objection.

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Another method by which the witness may be interrogated is the narrative form.
In this method, the witness is requested to state in his or her own words what
happened in a particular instance. This permits the witness to tell the story in a
logical sequence, normally making it easier for the jury to follow the evidence.
Narrative questioning has its drawbacks and is usually not permitted by the
courts. The witness, not being fully informed on the rules of evidence, may testify
concerning many things that are incompetent, irrelevant, or inadmissible, bringing
objections by the opposing side and requests to strike the testimony from the
record. The judge must then admonish the jury to disregard the testimony. This
procedure can be very time-consuming. It is also difficult for the jury to disregard
something a witness has said, even though it is stricken from the record and the
judge instructs the jury not to consider it.
There is another disadvantage to the use of narrative presentation during the
direct examination. While telling his or her story, the witness may go into matters
the attorney did not intend to include at that time. Or the witness may include
irrelevant material, which would result in extensive cross-examination and could
be detrimental to the case.

Even though both the narrative form of interrogation and leading questions have
their weaknesses, it is sometimes necessary to use one of them or a combination
in order to get the facts to the judge and jury. Both are time-consuming and may
help account for the lengthy ordeals that many trials are.

On cross-examination, the right to use leading questions is almost universally

recognized. As FRE 611(c)(1) puts it, “Ordinarily, the court should allow leading
questions … on cross-examination.” The official note to this rule points out that it
“conforms to tradition in making the use of leading questions on cross-
examination a matter of right.” Thus, questions asked by the cross-examiner
usually demand a “yes” or “no” answer. This is done for a purpose—the cross-
examiner is better able to control the information related by the witness.

No question may be asked on cross-examination unless its subject was brought up

during direct examination. This does not mean that the exact matter must have
been raised during direct examination, but the subject matter must have at least
been implicated during that phase. For example, a witness who testifies that he
saw the accused on a particular occasion could be asked on cross-examination
whether he, the witness, wears glasses, even though no such question was posed
on direct examination. The scope of the testimony, seeing and recognizing the
accused on the occasion in question, implicates the subject matter of the witness
wearing glasses.

Usually, the witness under cross-examination is an adverse witness (one aligned

with the opposing side), who may, because of conscious or unconscious hostility
engendered by the cross-examination, take advantage of the situation and try to
volunteer additional information to the advantage of the opposing side. This is an
ever-present hazard of cross-examination for both the witness and the cross-
examiner. The attorney, in fact, has more to lose than the witness. Cross-
examination is, at best, a dangerous procedure. Although lawyers are taught only
to ask questions to which they know the answers on cross-examination, the cross-
examiner can be surprised by unfavorable or unanticipated answers. In most
instances, the damaging effects of such answers are impossible to reverse. For
these reasons, effective cross-examination is a skill developed by only the most
capable attorneys. Many attorneys hold cross-examination to a minimum, or
waive it entirely, because of this potential for disaster.

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When done correctly, cross-examination is an indispensable method of either

eliciting testimony favorable to the examiner’s case or impeaching the witness’s
testimony. In eliciting favorable testimony, an attorney on cross-examination
might simply seek to have the witness testify to disputed facts favorable to the
examiner’s case. Or the attorney could have the witness repeat favorable
testimony already stated on direct examination. The cross-examiner might also
try to get the witness to qualify or explain damaging testimony given during
direct examination. At the very least, the cross-examiner could try to put the
witness’s testimony in the light most favorable to the examiner’s case and iterate
or reiterate the examiner’s theory of the case to the jury.

Perhaps the most important purpose of cross-examination is to persuade the jury

to disbelieve the testimony of a witness, or impeach the witness. Impeachment is
a process or a result that diminishes or destroys the believability of a witness’s
testimony. There are five basic methods of impeachment: (1) by contradiction; (2)
by proof of bad character for truthfulness; (3) by proof of prior inconsistent
statement; (4) by proof of bias or motive to falsify; and (5) by proof of lack of or
diminished witness capacity.

Impeachment by contradiction by cross-examination consists of asking the

witness about facts that are directly in opposition to those testified to on direct
examination. For example, assume a defendant is charged with the unlawful sale
of cocaine and that he takes the stand and testifies, denying the transaction and
stating that he has never had any contact with any drugs. If the defendant had
been tested for drugs as a condition for his release pending trial a year before and
the test was positive, on cross-examination, the prosecution would be permitted to
contradict the accused’s testimony by inquiring about the fact that the accused
had tested positive for cocaine.7

Impeachment by proof of bad character for truthfulness can be done in only two
ways. First, the witness can be impeached by proof that he or she was convicted
of certain crimes. Second, the witness can be impeached by questioning on cross-
examination about specific acts that involve dishonesty but did not result in a
conviction. The crimes that can be shown to impeach for bad character for
truthfulness are (1) a crime involving dishonesty and (2) any crime punishable by
imprisonment in excess of one year. Crimes involving dishonesty include perjury,
fraud, and embezzlement. Crimes punishable by imprisonment in excess of one
year include most felonies. Questions about bad conduct not amounting to a
conviction can uncover activities that show that the witness has been dishonest,
and therefore untruthful, even though the witness was not convicted or even
arrested. For example, the lawyer could ask the witness on cross-examination,
“Isn’t it true that you regularly took money from the cash register at the store you
work at?”

To complete the impeachment, the cross-examiner is allowed to prove the fact of

the conviction, should the witness deny it. However, an answer to a question
about an act that did not lead to a conviction must be accepted and cannot be the
subject of further proof by the cross-examiner.

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ON THE JOB

A law enforcement professional should testify truthfully, rather than with a focus
on obtaining a conviction. If a police officer is testifying to get a conviction, then
there is an obvious prejudice that might be exploited by the defense on cross-
examination and in closing argument. Some defense attorneys, however, would
like young law enforcement professionals to believe they are neutral parties in the
courtroom. The truth is that law enforcers have collected a paycheck for their
effort to solve the crime and undoubtedly believe in their own work product.
While they must tell the truth and divulge exculpatory information right along
with all the information that damages the defendant, they are prosecution
witnesses and not part of the defense team. The law enforcement professional
needs to present testimony completely and thoroughly, without sympathetic
regard for the potential that the defendant will be convicted.

Impeachment by prior inconsistent statement consists of the cross-examiner

asking the witness about the fact that the witness previously made statements
contradicting his or her testimony given on direct examination. Obviously, if a
witness has made contradictory statements, the jury might think that the witness
is either mistaken or lying, or has changed his or her mind for some other reason.
The only requirement in the FRE and in most states for the cross-examiner to
prove the content of a prior inconsistent statement is that the witness be given an
opportunity to explain or deny the statement and the opposing party be afforded
an opportunity to interrogate the witness about the statement.8
Impeachment for bias may take many forms. Any interest the witness may have
in the case or its outcome may be investigated on cross-examination to show bias
or motive to falsify. A relationship between the witness and a party involved in
the case; a financial connection, such as employment; and hatred or dislike for a
party are all examples of provable bias. In general, the law finds bias almost
always provable in any case. Particularly, ethnic or racial bias has been held to be
provable.9

Finally, the cross-examiner may seek to impeach a witness by showing a lack of

capacity or impaired capacity. Witness capacity consists of perception, memory,
narration, and sincerity. Poor eyesight, hearing, memory, or ability to speak
effectively are all matters that a cross-examiner may attempt to emphasize.
Clearly, if a witness has problems in any of these areas, the jury will weigh his or
her testimony carefully and might well disregard or give less weight to it. The
final category, sincerity, is an evaluation of all aspects of the witness’s demeanor
and testimony.

If there is any chance of impeaching a witness’s testimony by the cross-

examination, the cross-examiner will attempt to do so. For a law enforcement
professional acting as a witness, the cross-examination can become very
unpleasant. This is probably because officers and other law enforcement
witnesses are the most damaging witnesses insofar as the defendant’s case is
concerned. Unfortunately for such witnesses, some defense attorneys will go to
any length to confuse, belittle, or embarrass them on the stand in an effort to
diminish their testimony. Although such tactics may be difficult for the witness to
endure, they often work to the advantage of the prosecution. If a law enforcement
professional is able to maintain composure and control, the jury may feel more
sympathetic toward the witness than toward the defense attorney. The witness
should bear this in mind while testifying. (This matter will be discussed in further
detail in Chapter 15.) Even though the witness may dislike the experience of
cross-examination, in most instances, the defense attorney would also avoid it if it
were not considered necessary for proper representation of the defendant.

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Application Case

Perhaps the most famous instance of impeachment by proof of bias is that

involving Detective Mark Fuhrman, a prosecution witness in the O.J. Simpson
trial. The defense was very successful in impeaching Fuhrman’s testimony.
Fuhrman, in response to defense questions, denied being racist or otherwise
carrying out his police duties with a racist attitude. The defense was able to
present to the jury a number of instances in which Fuhrman exhibited a racist
attitude in his police work. Furthermore, the defense called a witness who had
interviewed Fuhrman for a movie script she was writing. This witness testified to
particular statements made by Fuhrman that were blatantly racist. Needless to say,
all of Fuhrman’s testimony was placed in doubt, and Fuhrman, along with the
entire police department, was thoroughly embarrassed by the episode.

Witness Must Answer Questions

A witness must answer all questions the judge permits, whether the questions are
on direct examination or cross-examination. Sometimes the witness is reluctant to
answer a question that may be adverse to the side for which the witness has been
called, particularly during cross-examination. To make matters worse, a witness
subject to cross-examination may not be given a chance to explain his or her
answer. However, the witness may be given the opportunity to explain the answer
on re-direct examination.

Detective Mark Fuhrman’s testimony in the O.J. Simpson trial was

impeached under cross-examination.
 Ted Soqui/Getty Images

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The one exception to the requirement that a witness must answer all questions is
with respect to a self-incriminating question. The guarantee of the Fifth
Amendment to the Constitution of the United States and the provisions of the
constitutions of the various states give a witness, as well as the defendant, the
right against self-incrimination.

Refusal to Answer a Question

Occasionally, a witness will refuse to answer a question asked by an attorney.

This is more likely to occur during cross-examination. As pointed out previously,
a witness is usually favorable to one side and will answer its questions. The entire
testimony of a witness who refuses to answer a question may be stricken from the
record. This is based on the premise that the witness must reveal the entire truth,
not just the portion believed beneficial to one side.

When an answer given to a question is not responsive, the unresponsive answer

may be stricken from the record. An unresponsive answer is one that does not
address the subject matter of the question that was asked or goes beyond the
scope of the question and relates to some other matter. The mere fact that an
answer does not fulfill the expectations of the cross-examiner is not sufficient
grounds to have it removed from the record. Receiving an unexpected answer, or
one less favorable than expected, is also insufficient grounds for having the
answer stricken from the record. When an answer is stricken from the record, the
jury will be instructed to disregard the answer and not to consider it as evidence
in the case.

If a witness absolutely refuses to answer a question, and if the question is not

incriminating, the witness can be held in contempt of court in addition to having
his or her entire testimony stricken from the record. Moreover, if a witness
knowingly makes a false statement about a matter material to the case, or swears
or affirms the truth of a statement made previously that he or she knows to be
untrue, the witness may be guilty of perjury. Perjury may be a misdemeanor or a
felony carrying corresponding criminal penalties of fines or imprisonment.

Opinion Testimony of Lay Witnesses

Most of the time, lay witnesses may relate only facts, not opinions. However,
under the common law rule and the FRE, lay witnesses may testify in the form of
opinion or make an inference under certain circumstances. Such testimony, called
lay opinion testimony, is restricted to those opinions or inferences that are
“rationally based on the witness’s perception; and … helpful to clearly
understanding the witness’s testimony or to determining a fact in issue.”10 Often,
the line between fact and opinion is very finely drawn. An opinion has been
defined as an inference or a conclusion drawn from a fact known or something
observed. Even though the term “conclusion” is often used as a synonym for
“opinion,” a conclusion is the ultimate inference drawn from a fact observed. As
it relates to the testimony of a lay witness, it would be an inference drawn from
something the witness observed. There are situations that can only be intelligently
described or expressed in the form of inference or opinion.

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For example, a witness may state that the defendant was angry when he came
home. Is this a conclusion made by the witness or is it a fact? Such a statement
may appear to be a conclusion, yet it is generally recognized that even a small
child quickly senses anger or a parent’s displeasure. This emotion is felt so keenly
that it may be a fact. Then, too, how would one describe what makes the witness
conclude the defendant was angry? Therefore, the law allows opinion testimony
in such circumstances. If the court, to avoid any misperception, then demands that
the witness relate what was actually seen and heard, the witness might state that
when the defendant came home his face was red; his mouth was drawn; his eyes
were wild; and he spoke in a loud, abrasive manner. Not much would be gained
by such a detailed description. Besides, such statements as the defendant’s eyes
were wild, his face was red, or his mouth was drawn are themselves opinions.
Thus, it is not always easy to determine whether a matter is a fact or an opinion of
the witness.

Consequently, the law has set guidelines by which a lay witness may relate
information in the form of an opinion. As previously stated, the opinion testimony
must be rationally based on the witness’s perception. In other words, the opinion
must be one that a person could normally form from observed facts. Second, the
opinion testimony must be “helpful to clearly understanding the witness’s
testimony or determining a fact in issue.” The jury should clearly understand the
witness who says, “The defendant was angry when he came home.” On the other
hand, a description similar to that given in the earlier example could be entirely
misconstrued by the jury as fear instead of anger. Such a misinterpretation by the
jury could be the determining factor between a first-degree murder verdict (if the
defendant was angry) and one of not guilty based on the belief that the killing was
done in self-defense (if the defendant was fearful). Accordingly, the lay witness’s
opinion testimony could be crucial.

In addition to those concerning human emotion, there are many occasions within
common experience when an ordinary person may render an opinion. In one case,
a California court stated:11

The exception [to the rule prohibiting opinion testimony by a lay witness] …
applies to questions of identity, handwriting, quantity, value, weight,
measure, time, distance, velocity, form, size, age, strength, heat, cold,
sickness, and health; questions also concerning various mental and moral
aspects of humanity, such as disposition and temper, anger, fear, excitement,
intoxication, veracity, general character, etc. … We identify men. We cannot
tell how, because expressions of the face, gestures, motions, and even form,
are beyond the power of accurate description. Love, hatred, sorrow, joy, and
various other mental and moral operations, find outward expression, as clear
to the observer as any fact coming to his observation, but he can only give
expression to the fact by giving what to him is the ultimate fact, and which,
for want of a more accurate expression, we call opinion.

Before a lay witness may express an opinion, a proper foundation must be laid to
prove that the witness had personal knowledge of the facts upon which the
opinion is formed. Personal knowledge may be shown by evidence in the form of
the witness’s own testimony. Therefore, a witness may not testify that something
smelled like marijuana unless it is established that the witness, from prior
experience, knows what marijuana smells like. Moreover, it is important to note
that the opinion of the lay witness may be only about something that the witness
observed, heard, or smelled and not in answer to some hypothetical question
pertaining to the witness’s opinion of the matter.

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A great deal of discretion has been given to the trial judge in determining when a
witness may relate an opinion. The appellate courts have stated that the trial judge
is in a better position to make this decision in accordance with what is taking
place at the time, and the appellate courts are therefore reluctant to reverse
decisions of this kind unless there is a material error in judgment.
Some of the more commonly encountered opinions that may be expressed by a
lay witness in criminal matters are discussed in further detail in the following
sections.

State of Emotion

In criminal trials, a lay witness is frequently called upon to express an opinion as

to the state of emotion of the accused or of the victim of a crime. It may be most
important to know whether the accused was angry or excited at a particular time
or whether the victim was afraid, happy, or in love. If the lay witness had an
opportunity to observe the accused or the victim at the pertinent time, the witness
may express an opinion of the state of emotion of either.

Speed of Vehicles

A lay witness who has observed a moving vehicle is permitted to state an opinion
as to the speed of the vehicle. The witness need not be able to drive in order to
state an opinion as to the speed, but some experience verifying that the witness is
familiar with various speeds may need to be shown. Witnesses have been
permitted to state that a vehicle was going very fast or that it was going faster
than other vehicles in the area. A lay witness may even be permitted to state that a
vehicle was going fast or very fast merely from hearing the sound of the vehicle
pass an area. A lay witness may not give an opinion about speed merely from
observing skid marks, as this falls within the purview of an expert witness.
Neither may a lay witness state that a person was driving negligently or
dangerously, as this may be the very issue in question and must be decided by the
jury.

Distances

Opinion testimony of a lay witness is permitted with respect to distances between

two objects, so long as the testimony is rationally based on the personal
knowledge of the witness. For example, a witness may give an opinion as to the
approximate distance between an intersection light that turned red and a car that
ran the red light as probative of the time the driver had to stop before hitting a
pedestrian. If a proper foundation is laid showing that the witness was at the
intersection or nearby, and personally observed the facts testified to, then such
testimony will be admitted. Moreover, in evaluating an opinion expressed by a
witness concerning distances, the witness is often tested by being asked to
estimate distances between objects within the courtroom.
Page 129

Sobriety or Intoxication

Often, a person’s sobriety or intoxication at a particular time is in issue, either in

establishing guilt or mitigating to a lesser offense. A lay witness may testify to an
opinion that an individual was intoxicated or sober if it is sufficiently established
that the witness, from prior experience, knows how an intoxicated or sober person
appears. For instance, a bouncer employed by a bar may testify that the defendant
appeared intoxicated, therefore lacking the requisite intent for first-degree
murder, when the defendant killed the victim by breaking a bottle over the
victim’s head. In establishing the proper foundation for the witness’s testimony,
the witness may testify to the fact that, by being a bouncer at a bar, he observed
intoxicated individuals on a daily basis and is therefore able to determine if
someone is sober or intoxicated. Accordingly, on this, the bouncer may testify
that the defendant appeared intoxicated in light of the bouncer’s prior experience.

Age, Identity, and Physical Condition of a Person

A lay witness may give an opinion of the estimated or approximate age of a

person whom the witness has observed. If a lay witness is acquainted with
another person or has observed that person, the witness may express an opinion
about whether a photograph is a good likeness of the individual. The witness may
also state an opinion as to whether a voice heard over a telephone or through a
closed door was that of someone whose voice the witness is able to recognize.
Likewise, a lay witness may give an opinion about the general physical
characteristics of a person. This includes such opinions as whether a person
appeared to be strong, weak, feeble, or ill. Generally, a lay witness may not give
an opinion about a type of illness or any internal physical condition. Lay opinions
should be confined to things that are observable.

Opinions on Miscellaneous Matters, Such as Weight, Color, and

Value

Because of the familiarity of the average person with a great number of

nontechnical matters, the lay witness may express an opinion on such matters.
These include opinions about the approximate weight, size, or color of an object.
The witness may state an opinion on matters of taste, smell, and touch. The
witness may also, on a limited basis, give an opinion of the value of certain
objects or property. If value is an important issue in the case, the services of an
expert may be called upon.

Character of a Person

A witness may testify, in the form of opinion, as to another witness’s character for
truthfulness or untruthfulness. This is an express exception to the general rule
prohibiting the use of character evidence for purposes of showing a propensity to
act in a certain way. Character evidence will be discussed in more detail in
Chapter 6, but for the present, it is important to note that proving a witness’s
character for veracity is permissible. As in all forms of opinion testimony, any
such testimony offered to prove the character of a witness must be rationally
based on the perception of the witness and must be helpful to a clear
understanding of the witness’s testimony or the determination of a fact in issue.
The witness must have sufficient personal knowledge or experience from which
an inference may be drawn showing another witness’s character for telling the
truth. For instance, a witness may testify that he or she perceived the other
witness telling lies and that, in her opinion, the other witness is not a truthful
person. However, the witness giving such an opinion may not testify about those
specific instances of conduct. Only the opinion testimony is permitted.

Page 130

Character witnesses can often be embarrassed or easily discredited by the

opposing side. According to the rules of evidence, during cross-examination, a
character witness may be asked questions such as “Did you know that the
defendant has been arrested for shoplifting, loitering, and public nuisance five
times in the past?” The question must have some basis in fact; however, since
people rarely know everything about friends’ and coworkers’ pasts, the opposing
side can generally find some damaging “secret” to reveal. Because character
witnesses can be so easily embarrassed or discredited, their use is not common.

Sanity

There are occasions when a lay witness may even express an opinion on the
sanity of a person with whom he or she is intimately acquainted. However, as a
general rule, a lay witness may not express an opinion of whether the
acquaintance knew the difference between right and wrong, as that is a fact that
the jury is called upon to decide during a trial. In some jurisdictions, the lay
witness may not express an opinion as to the sanity of a person but may merely
express an opinion as to whether the person in question acted in a rational or
irrational manner. The courts have stated that it is not necessary that the witness
have any prior acquaintance with the person in order to give this sort of opinion.
This decision is based on the supposition that a rational person reacts in a certain
“normal” manner and that an irrational person deviates from this normal manner.
An observer can generally draw a conclusion as to whether a person appeared
rational after viewing the person for a short time. In order that a jury may better
evaluate an opinion, it is considered proper procedure for the lay witness to relate
as accurately as possible the actions and words from which he or she drew the
conclusion as to the person’s sanity or rationality. All but four states allow such
testimony: New York and Massachusetts do not, and Delaware and Hawaii are
undecided on the issue.12

Opinions About Handwriting

In many instances, a lay witness may state an opinion about the genuineness or
identification of the handwriting of another. The use of the lay witness in this
regard stems from our country’s legal history. The common law rule, both in
England and in this country, often required the authentication of a document or of
a person’s handwriting. In earlier days, handwriting experts were unknown, so the
services of the lay witness were used through necessity. It was held that, if a
witness had seen another person write or had received correspondence or
documents from the person, the lay witness could express an opinion about the
genuineness of the writing. This kind of opinion must not be confused with the
opinions that are expressed by an expert witness in the field of handwriting
comparisons. The lay witness merely observes a questioned handwriting and,
being familiar with the handwriting of the person, expresses an opinion as to
whether it is genuine.

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ON THE JOB

A police officer’s demeanor in the courtroom is crucial in establishing his or her

credibility. A police officer is most often a lay witness as described in the text.
Thus, the officer is subject to the limitations imposed on nonexpert witnesses.
However, the standard rules do not account for society’s expectations and the
manner in which a jury views a police officer’s testimony. Police officers hold a
special place of responsibility in the community, and, despite recent fallout from
recent events and highly publicized criminal and civil trials, jurors will look to the
officer’s demeanor in court as the all-important initial indicator of the officer’s
credibility. Four specific guidelines for police officers’ testimony follow:

1. In terms of proper clothing in court, as a general rule, the officer should

testify dressed as he or she was at the time of his or her involvement in the
case, unless the officer was undercover. If the officer was in uniform at the
time of the arrest, then he or she should testify in uniform. If the officer was
wearing civilian clothing, then civilian clothing should be worn to court. If
there is any question about the officer’s credibility, a freshly pressed uniform
with shined leather gear and shoes is sure to make the proper impression on
the jury.

2. The officer is “on display” the moment he or she enters the courthouse. Any
loud or embarrassing behavior with other officers should be limited to the
locker room.

3. The officer should conduct himself or herself as a professional. He or she is

a witness for the state, but jurors do not expect blind loyalty to the
prosecution. An officer’s testimony should, at all times, be factual, accurate,
and limited to the officer’s firsthand knowledge of the incident in question. It
is important that the officer not appear overtly biased in favor of the
prosecution. Jurors tend to expect police officers to be fair and impartial.

4. A career in law enforcement requires dedication and integrity from the

moment the individual decides to pursue such a vocation. Honor and
integrity are keystones to success, both on the street and in the courtroom.
No defendant is worth an officer’s career. An officer should never commit
perjury. Once an officer has committed, or is believed to have committed,
perjury, his or her effectiveness as a witness is ruined. Some agencies will
dismiss an officer who is guilty or suspected of perjury.

Terminology of Lay Witnesses

Terminology alone does not convert a witness’s admissible factual testimony into
inadmissible opinion testimony. In general conversation, people frequently start a
statement with such phrases as “in my opinion,” “it is my belief,” or “I believe.”
This would seem to imply that the person using such phrases is expressing a
conclusion. In reality, the witness may be stating a fact. When a witness uses such
a phrase, the attorney conducting the examination may have to question the
witness further to clarify that a fact, not a conclusion, is being stated. Even if a
witness is testifying to a conclusion or an opinion, such testimony may be
admissible, provided the conditions already explained are met.
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Expert Witnesses
No matter how sophisticated a jury panel may be, it inevitably will be called upon
to make judgments about many matters, some of which may be beyond the
understanding of its members. Matters involving specialized knowledge are often
presented to the jury in even the most mundane case. To assist the jury in its
search for the truth, and in the best interests of justice, the services of expert
witnesses come into play. As many everyday matters continue to become more
technical and specialized, expert witnesses will play an even more important role
in trial proceedings in the future. Expert witnesses may come to be viewed as
assistants to the jury. An expert witness gives the jury the benefit of knowledge of
a particular science or skill. By such knowledge, the jurors are assisted in arriving
at the truth. Although the jury need not accept the opinion, an expert is permitted
to express an opinion or draw conclusions concerning a particular set of facts or
about the examination of some evidence.

Generally speaking, under the FRE an expert may testify if the scientific,
technical, or other specialized knowledge he or she provides will assist the jury in
understanding the evidence or in determining a material fact. Before an expert
may testify, the judge must first determine whether the witness is qualified as an
expert in the particular field by knowledge, skill, experience, training, or
education and that the testimony will help the jury arrive at the truth.

Definition of an Expert Witness

An expert witness is a person skilled in some art, trade, science, or profession. An
expert must have knowledge, skill, experience, training, or education that is
beyond that of the average person. In this respect, therefore, an expert is in a
position to assist the jurors because they do not have such a background.

Contrary to popular belief, the expert witness does not have to be a person of
great educational background or training. All that is necessary to qualify as an
expert witness is scientific, technical, or “specialized” knowledge that the
ordinary person does not have. The witness may have gained this knowledge
through longtime work experience in that field. For example, a cement mason
may have very little educational background but, because of experience in the
cement and concrete trade, may qualify as an expert in that field. A mason may
be in a position to express an opinion about how long it takes concrete to harden
before it can be driven upon without doing damage. On the other hand, there are
certain areas in which the expert witness may have to show extensive study and
training. This would be true in matters pertaining to medical or scientific
examinations, for example, identification by fingerprints or matching DNA
samples.

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It is possible to become an expert witness through self-instruction and experience.

Many crime laboratory experts, better known as criminalists, fall within this
category.

The Foundation for Expert Testimony

To utilize the testimony of an expert witness, three requirements must be
established to the satisfaction of the trial judge. First, the subject matter of the
expert’s proposed testimony must be relevant in the sense that it will assist the
jury “to understand the evidence or to determine a fact in issue.”13 Second, the
expert’s field must be one requiring scientific, technical, or specialized
knowledge. Third, the witness must be shown to have the background necessary
to qualify as an expert in the field.

The first and third foundational requirements pose no unusual burdens upon the
trial judge. Relevance determinations and qualifications of witnesses are routine
matters and easily understood by all judges. Although some unusual cases may
present complex issues, and the ingenuity of trial lawyers may tax the trial court’s
resources at times, these foundational requirements are usually not problematical.
However, the second foundational requirement, qualifying the subject as a valid
one, has generated substantial controversy.

The United States Supreme Court’s decisions in Daubert v. Merrell Dow

Pharmaceuticals, Inc.14 and Kumho Tire Co. Ltd. v. Carmichael15 set the standard
for the trial court’s determination of the foundation for expert testimony with
respect to scientific principle under the FRE. Prior to the Supreme Court’s
decision in Daubert, the Frye16 standard for admissibility of this aspect of expert
testimony was the general rule. Under the Frye test, only such expert testimony as
was based on a scientific methodology “generally accepted as reliable in the
relevant scientific community” was admissible. In contrast, the Daubert-Kumho
test requires the trial judge to determine that the subject of an expert’s testimony
has achieved the stature of “scientific knowledge” based on five factors: (1)
testing of the theory or technique; (2) peer review and publication of the theory or
technique; (3) the scientific technique’s known or potential rate of error; (4) the
existence and maintenance of standards controlling the technique’s operation; and
(5) the theory or technique’s “general acceptance.” Even if not generally accepted
by the scientific community, it is possible for a scientific theory to be used in a
trial if consideration of the other four factors favors the use of the evidence. In
Kumho, the Court extended Daubert’s holding to apply not only to scientific
principles but to technical and specialized knowledge as well. The Court has
referred to the function of the trial court in making the Daubert-Kumho
determination as the gatekeeper for deciding the admissibility of an expert’s
opinion testimony.

FYI

On February 18, 2009, the National Research Council (NRC) issued its much
anticipated report on the fractured state of forensic science in the United States.17
This report criticizes the very foundation of much scientific expert evidence
presented in criminal trials in the United States, calling for a massive reform of
the forensic institutions responsible. Here is a critical excerpt from the summary
section of the report: “With the exception of nuclear DNA analysis, however, no
forensic method has been rigorously shown to have the capacity to consistently,
and with a high degree of certainty, demonstrate a connection between evidence
and a specific individual or source.”18 It is not known whether, and to what
extent, courts may react to the report and exclude forensic evidence under the
Daubert-Kumho standards for the admission of evidence reliant upon scientific,
technical, or specialized knowledge principles.19

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A criminalist is a specialist in the application of science to crime and the law.

Because criminalists are the most familiar type of expert witness, such a
professional will serve as an example in examining when an expert witness may
be used. When the criminalist makes a bullet comparison or compares a latent
fingerprint with that of a suspect, the expert’s opinion is necessary in the trial,
since the average person is unable to analyze such findings without assistance.
Therefore, by enabling the jury to understand better the evidence before it, the
criminalist’s testimony concerning the bullet or fingerprint comparison satisfies
the first criterion of admissibility. The second criterion requires that the scientific
principles involved in ballistics and fingerprint comparisons must qualify as
reliable under the Daubert-Kumho test. Since these principles have been accepted
in courts for many decades, they easily satisfy this criterion.

The third requirement is that the witness must be qualified as an expert in these
fields. No set foundation is required, since an expert may be qualified by
knowledge, skill, experience, training, or education. Therefore, if the criminalist
has had formal education in ballistics and fingerprint analysis, this information
would be elicited first by the prosecutor on direct examination. However, even if
the witness has had no formal education, the prosecutor can qualify the
criminalist as an expert by eliciting information about the witness’s special
training and experience. Even if our hypothetical criminalist had no formal
education, he or she could have studied related subjects. For example, in the case
of the ballistics examiner, it would be to his advantage to have a knowledge of
metals, physics, chemistry, and criminalistics, although there is no requirement
that he must have studied these courses in order to qualify. Although not a
requirement, if an expert can show formal study in addition to experience and
training, the testimony will probably be given greater weight by the jury.

Qualifying the Expert: Voir Dire

The process of qualifying a witness as an expert is called voir dire. This term
means “the questioning or examination into the character and possible biases.”20
Just as when it is applied to the selection of a jury, a voir dire of a proposed
expert witness requires that the witness answer questions about his or her
qualifications. However, unlike the voir dire of a jury, the qualification of an
expert witness places a burden upon the side producing the expert witness to
prove qualification. So, in a typical criminal case, the qualification process
involves preliminary questions asked of the witness about education, experience,
training, and work in order to establish the witness’s basic qualifications. In
addition, the attorney will want to qualify the witness as persuasively as possible
by going beyond the essential qualifications in order to give the witness as much
stature as possible in the eyes of the jury. Often, opposing counsel, knowing the
witness will be admitted as an expert, will offer to accept the witness without
going through the usual qualification questions and answers. The side offering the
witness as an expert will, of course, want the jury to hear as much of the witness’s
credentials as possible. Persuasive qualification is particularly important in cases
in which the opposing parties each intend to use expert testimony with respect to
a specific issue.

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For example, consider a crime laboratory technician who specializes in bloodstain

examinations. The prosecuting attorney would call the technician to the stand
and, after asking the witness’s name and occupation, would probably ask about
educational background, as college training in science (especially chemistry and
biology) would improve the witness’s image. In addition to any educational
qualifications, the witness’s work experience, including training under the
supervision of other experts in the field, would be introduced. Also, the length of
time that the technician has been engaged in this kind of examination would be
revealed, particularly if a considerable period. With respect to any expert witness,
it would be persuasive for an attorney to examine areas beyond the basic
qualifications of education and experience, for example, specialized training,
continuing education courses, teaching and lecturing positions, licenses and
certifications, publications, consulting experience, professional memberships,
awards, and other professional honors. The more qualifications the prosecuting
attorney can introduce, the more likely the expert is to impress the jury, and the
more inclined the jury is to accept the expert’s conclusions as accurate.

It is necessary in some jurisdictions, once qualifications have been completed, to

formally tender the witness to the court as an expert in a particular field, after
which the opposing counsel may attack the expert’s qualifications.21 The
procedure described in the text has come to be disfavored. The reason to disfavor
such tendering of a witness as an expert to avoid the trial court putting a stamp of
authority on a witness’s opinion. Though the ABA proposal was made in the
context of civil trials, the report also said that the policy should be extended to
criminal cases. The purpose of tendering the witness as an expert is to inform the
court that qualification has been concluded. The opposing attorney then has an
opportunity to conduct a voir dire examination of the witness and to force that
opposing voir dire to take place before the witness’s opinions have been elicited.
Thus, the voir dire allows the opposing counsel to attempt to show that the
technician is not qualified through a cross-examination limited to the witness’s
qualifications before the witness gives an opinion. Opposing counsel might
attempt to show that the technician has had little education in a related scientific
field, or that the witness has had limited experience. Or counsel may attempt to
discredit, if not disqualify, the expert by exposing other factors, such as out-of-
date credentials or irrelevance of specialties. Even if the opposing attorney is not
able to bar the witness from testifying as an expert, the attorney may seriously
damage the effect of the witness’s testimony. Consequently, a person endeavoring
to qualify as an expert witness should be prepared to show as extensive an
amount of personal skill in and knowledge of the relevant subject matter as is
possible.

If during the qualification procedure it has been shown that the witness is a highly
qualified individual, the opposing attorney may waive voir dire entirely. Although
such a waiver precludes defense counsel from attacking the witness’s
qualifications as an expert, it does not preclude the defense attorney from cross-
examining the expert with respect to the expert’s opinions given on direct
examination. In many cases, an opposing attorney has lessened the effect of the
expert testimony through cross-examination, although cross-examination of an
expert witness can be a difficult task for an attorney, since he or she usually has
very little knowledge of the field. For this reason, it is often necessary for the
attorney or paralegal to conduct extensive research to become acquainted with
that field.

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The final determination of whether a person qualifies as an expert witness is

made by the trial judge, and, unless the decision is beyond all reason, it will not
be overruled on appeal. Once the judge accepts the witness as an expert witness,
the weight given to that person’s testimony is determined by the jury. If the trial
judge decides that a person tendered as an expert does not qualify, it is unlikely
that the person can then testify as a lay witness, especially since the 2000
amendment to FRE 701 prohibiting a lay witness to give evidence based on
scientific, technical, or otherwise specialized knowledge. As the advisory
committee’s note accompanying the amendment put it, the rule was changed to
prevent evading the requirements for expert testimony by tendering an “expert in
lay witness clothing.”

Testimony of the Expert Witness

The opinions and conclusions of an expert witness may be based upon
information gained in one of three ways. First, specific information possessed by
the expert, gained through examination of a particular piece of evidence, may be
the basis of his or her opinion or conclusion. Such opinion testimony may be
elicited simply by asking the expert what conclusions were reached after
examining the evidence.
Second, the expert may rely upon data supplied from another source in any form,
as long as it is within the usual practice in the field to rely on such data.
Moreover, under FRE 703, the facts or data upon which the expert bases an
opinion need not be admissible at trial, provided that such data or facts are of a
type reasonably relied upon by experts in that field.

ON THE JOB

From May 2003 to January 2004, a Los Angeles police chemist botched evidence
in 47 narcotics cases by failing to properly weigh drugs before testing.22 The
errors raised questions about the credibility of the chemist, who had analyzed
drugs for the LAPD since May 2003. Following are some of the possible
consequences of this chemist’s sloppy work:

In cases that have already gone to trial, defense attorneys can file a motion
for a new trial based on the claim that the chemist’s testing was incorrect. As
one defense attorney put it, “Any time you have law enforcement not doing
their job accurately, it undermines the potential legitimacy of the evidence
they want to present.”

In future cases, if a prosecutor believes the errors undermine the chemist’s

expertise, the facts of the prior errors must be disclosed to the defense. As
one defense attorney pointed out, “An argument could be made that this
evidence indicates that [the] chemist is a ‘careless’ and/or ‘incompetent’
scientist.” Prosecutors are obligated to turn over the information if they
know the chemist made even one mistake.

Thus, as a result of sloppy work, in each future case in which this chemist
takes the stand as an expert witness, each defense attorney will be able to
cross-examine him by asking if his results in drug testing have ever been
found to be inaccurate. The defense attorney will be able to bring out the fact
that convictions were reversed and evidence thrown out due to his sloppy
work. In closing argument, the defense attorney can point out that the
prosecution’s own expert testimony was discounted by the prosecution.

As a result, this expert’s testimony will not be helpful in any future cases,
and he will probably not be used as an expert witness again.

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Third, the expert may be presented with a set of hypothetical facts from which the
expert is asked to draw conclusions. This type of presentation is not used
frequently in criminal cases. Most often, expert testimony in criminal cases
results from an actual examination of a piece of physical evidence. This is
particularly true of testimony given by criminalists. A criminalist’s appearance as
an expert witness generally originates from an earlier examination of an article
found at a crime scene. This does not preclude the defense attorney, or the
prosecuting attorney, from also presenting certain hypothetical questions to the
expert.

As an example, a criminalist may conduct DNA tests on a blood sample. From

those tests, he or she can express the opinion that the DNA found at the crime
scene matches that of the accused or the victim. DNA tests are not only exclusive
to blood evidence but may also be conducted on saliva, hair, or semen left at the
crime scene. In conducting the DNA test, the criminalist is able to extract a
genetic “fingerprint,” which can then be compared with the genetic fingerprint of
a DNA sample taken from the accused. Both DNA evidence and blood grouping
evidence are forms of statistical proof—DNA evidence being the most useful in
determining identity. For example, blood grouping evidence may narrow the
range of other potential suspects with the same blood type to 1 out of 200,
whereas DNA evidence may, as a practical matter, eliminate any possibility that
there exists another potential perpetrator by identifying the specific genetic
“makeup” of the accused.

One may assume that blood and DNA typing are scientifically proven facts and
not mere opinions of the witness. Science definitely accepts that blood will react
to certain chemicals, that human blood will react in a different manner than
animal blood, and that blood can be grouped. Moreover, DNA testing is a
scientifically accepted procedure and is readily admitted at trial. However, since
the results of DNA testing are statistical projections, it is merely an opinion of the
expert that, for example, the stains found on a shirt were the blood of the accused
and that the bloodstains were genetically identical to some found at the crime
scene. Because of the expert’s skill and knowledge in such matters, the witness
may give opinions resulting from the examination of the evidence for the benefit
of the jury. The jury may or may not believe the opinions to be true, depending
upon how well qualified it considers the witness to be and how convincing it
finds the testimony.
 MYTH FACT
The testimony of a criminalist Such testimony is a matter of mere opinion
pertaining to the blood typing or and may be completely disregarded by the jury
genetic identification of a blood if it thinks the criminalist is not a convincing
sample is a matter of fact that witness or if it has doubts about any other
must be accepted by the jury. aspect of the bases for the opinions.

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Application Case

The O.J. Simpson trial did much to bring DNA evidence into the public eye. The
prosecution in the Simpson case relied heavily upon DNA evidence. Blood
samples of both the victims and Simpson were taken from the murder scene.
DNA evidence extracted from these samples was then matched to DNA extracted
from blood samples found in Simpson’s home and car. Although the DNA
evidence linked Simpson to the crime scene and all but eliminated the possibility
that anyone else with the same genetic “code” as Simpson could have been
present at the crime scene, the sloppy manner in which the police and the
criminalists collected, handled, and tested the blood caused the jury to discount
the expert DNA testimony. Poor police and crime lab procedures led the jury to
doubt the validity of the otherwise strong expert testimony.

The second way that experts may get data upon which to base an opinion is from
a source generally relied upon by experts in the field. Rarely will an expert testify
based upon information transmitted only by word of mouth, but an expert may
often be presented with written reports gathered by others, which the expert will
read and analyze, and upon which he or she will render an opinion. For example,
a doctor specializing in orthopedics may rely upon the report of a radiologist, who
interprets an X-ray, in rendering an opinion with respect to a bone fracture.

The third basis for an expert opinion involves the use of hypothetical questions.
Although hypothetical questions have historically been criticized “as encouraging
partisan bias … and as complex and time consuming,”23 the FRE continue to
allow the use of such questions. It is within the discretion of the trial judge
whether to allow hypothetical questions. Thus, an expert may be a witness even
though he or she has not examined any evidence and has no knowledge, either
directly or indirectly, about the case. Instead, a set of hypothetical facts, data, or
opinions that has some relation to the matter at issue will be given to the expert,
who will then be asked for an opinion, based on his or her experience and
knowledge of what would happen, given a certain set of circumstances. Only if
the jury were to find each of the hypothetical facts to be proven could it even
consider the expert’s opinion based on the proposed hypothetical scenario.

In the O.J. Simpson trial, the jury doubted the validity of the DNA
evidence presented by criminalist Dennis Fung.

POOL/Getty Images

For example, a medical doctor may be placed on the witness stand and asked,
“Assuming that a man had been in the habit of drinking four cans of beer each
night before supper for more than two years, would this in your opinion retard his
reaction time?” As long as the facts contained in the hypothetical scenario are
ultimately supported by evidence, the jury will be permitted to consider the
expert’s opinion.
Page 139

When facts and data not admitted into evidence are used in forming a
hypothetical question, the trial judge will usually give an instruction to the jury
not to consider those facts and data in its deliberations.

Whatever the source of information upon which an expert bases an opinion, that
information must be of a type reasonably relied upon by experts in that field.
Even if the evidence relating to that underlying information is inadmissible, as
long as the facts, data, or opinions are of a type reasonably relied upon by experts
in that field in forming opinions, then the attorney questioning the expert may
pose questions disclosing such information. For example, a medical examiner
may rely upon all of the reports contained in a police file, as well as the autopsy,
in determining the cause of death of a homicide victim. Even though the written
reports might be inadmissible hearsay, the fact that medical examiners rely upon
such reports allows the information contained in those reports to be the subject of
questions posed by the lawyer during examination of the expert witness, as long
as the trial judge determines that the probative value of the evidence in assisting
the jury to evaluate the expert’s opinion substantially outweighs the evidence’s
prejudicial effect. Even then, the trial judge will instruct the jury only to consider
such evidence insofar as it assists the jurors in evaluating the expert’s testimony.
This was affirmed in Williams v. Illinois,24 when the United States Supreme Curt
ruled an expert witness may state an opinion based on facts the expert assumes,
but does not know to be true. Certain requirements must be met. See further
discussion of the Williams case at the end of Chapter 7. Under FRE 703, the jury
cannot consider the inadmissible evidence in any other way.

The prosecution or the defense may call expert witnesses, or the judge, on his or
her own initiative, may request that an expert be called in for some purpose.
Court appointment of expert witnesses frequently occurs if a question of insanity
is involved or some physical ailment is alleged. With respect to court appointment
of experts, FRE 706 (a) provides: “On a party’s motion or on its own, the court
may order the parties to show cause why expert witnesses should not be
appointed and may ask the parties to submit nominations. The court may appoint
any expert that the parties agree on and any of its own choosing. But the court
may only appoint someone who consents to act.”

Kinds of Expert Witnesses

It would be next to impossible to list all of the kinds of expert witnesses that may
be encountered. However, a few of the better-known areas in which experts
appear in criminal cases are reviewed here.

Medical Examiner or Coroner

In homicide cases, the cause of death must be established. This is invariably done
by the medical examiner or coroner. The prosecution will call the examiner as an
expert witness to give an opinion of the cause of death as a result of his or her
examination of the body. It is only after the coroner or medical examiner has
made a complete examination of the body that he or she can conclude that the
death was due to stabbing and not to a heart attack or that a death was due to
strangulation and not to accidental drowning.

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Document Examiner

A document examiner is usually skilled in making comparisons of both

handwritten documents and documents produced by other means. Such a person
would be able to qualify as a handwriting expert and as an expert in the field of
document examination generally. A handwriting expert is seldom acquainted with
the person whose writing he or she examines. Instead, the expert’s examination is
purely a comparison of two or more writing samples. The expert may compare
two checks in an effort to determine whether they were written by the same
individual. Or the expert may compare a known sample of a person’s handwriting
against a questioned check or document to determine if the same person wrote the
second document.

An expert in the field of document examination may examine a document and

express an opinion about the method used to create the document. In the case of a
document produced on a typewriter, computer, facsimile, copier, or printer, the
expert might examine the document and a known sample from a particular piece
of equipment and express an opinion as to whether the document was produced
by that device. In many cases, a document examiner will be able to express an
opinion identifying the manufacturer of the paper used and the approximate date
of its manufacture.

Although many people consider themselves to be authorities on handwriting and

questioned document comparisons, it requires a great deal of study and
experience to be accepted as an expert in this field. There is much that must be
taken into consideration when comparing handwriting and documents, yet to date
there is little in the way of formal schooling on this subject. Thus, this is one area
in which an extensive educational background in the skill may be difficult to
show. Still, juries are usually impressed by college degrees, even when it comes
to this kind of examination and testimony. A general study in the field of
criminalistics would add weight to the testimony of an expert witness who was
commenting on handwriting and questioned documents.

Fingerprint Expert

The officer who examines a crime scene or piece of evidence for latent
fingerprints usually testifies at trial as a lay witness. Although it takes a certain
amount of skill and knowledge to lift and develop latent prints properly, it is not a
field in which one must qualify as an expert witness to state that latent prints were
located and developed. If an officer has had considerable experience in
developing latent prints, the prosecuting attorney may introduce this information.
If so, it is done merely to give more weight to the testimony and not for the
purpose of qualifying the officer as an expert witness. In many large law
enforcement agencies, the person who searches for and develops latent prints is
frequently the fingerprint expert. However, most small departments must rely on
the officer in the field to develop and lift the prints, which are in turn given to the
expert for a comparison with a suspect’s prints.

The services of the fingerprint expert become important when it is necessary to

make a comparison of a latent fingerprint at a crime scene and the prints of a
known suspect to determine whether the prints match. If an identification is made,
the examiner will, in most instances, be called as a witness to prove the basis
upon which the identification was made. In these circumstances, the examiner
will have to qualify as an expert in the field of fingerprint examinations. Here
again, little in the way of formal education is available to an expert, but such a
witness will have to show some study, training, and experience to qualify as an
expert.

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Skid-Mark Expert, Speed Expert, and Accident Reconstructionist

Serious motor vehicle accidents are a fact of life in many countries. In many
instances, there are few, if any, eyewitnesses to automobile accidents, so the
determination of the speed of the vehicles involved in accidents is not easily
made. However, speed is often an important factor in such a case. Therefore, an
accident investigator is often called upon to give an opinion as to the speeds of
the vehicles involved. Such an opinion is based on the skid mark or marks left at
the accident scene or other observable data. Through the use of calculus,
computers, and scientific knowledge, the speed of a vehicle involved in an
accident can be determined with a fair degree of accuracy. Also, accident
investigators are frequently called upon to state opinions concerning what may be
safe speeds in accordance with certain road conditions. These opinions are
usually based upon hypothetical questions. Such questions may be phrased in the
following manner: “Based on your training and experience, assuming ideal road
conditions—for instance, in the middle of the summer, no snow, no wetness—
what would be the reasonable or safe speed in and about the area of the
accident?” The expert would then give the jury the benefit of an opinion to assist
them in deciding whether a driver involved in a serious or fatal accident may be
held criminally responsible.

Experts on Bookmaking, Narcotics, and Other Specific Types of

Crimes

Officers who have had extensive experience in working on particular types of

crimes may become qualified as crimes experts with respect to those crimes. For
example, officers who work on bookmaking cases may become qualified as
experts on the material and paraphernalia used by bookmakers.

Likewise, officers experienced in drug investigations may qualify as experts on

drug users’ methods of taking drugs. They may also express their opinion about
scars that they believe to have been made by injections, or whether certain
paraphernalia found at a crime scene were used by those engaged in the use or
sale of narcotics. The narcotic content of a pill or powder, however, would have
to be determined by a person skilled in the field of chemistry.

Criminalist or Forensic Scientist

It is next to impossible to list all the areas in which individual experts in a crime
laboratory, usually called criminalists, may be involved. But a few of the more
commonly encountered areas are ballistics, spectroscopic examinations, hairs and
fibers, soils, toxicology, glass and glass fractures, blood and other body fluids,
paints, and chemicals.
DNA Experts

The use of DNA evidence requires the assistance of highly educated and trained
experts. It would be impossible for an officer or another person, by way of
training or experience only, to give an opinion with respect to such evidence.
Consequently, it is necessary to have experts educated in the fields of genetics,
biology, chemistry, and other sciences to testify as DNA experts concerning such
evidence. Often, scientists with advanced degrees in the sciences will be required
to testify, as this lends more credibility to their testimony in the eyes of the jury.

Page 142

Footprint Experts

Footprints are admitted in evidence when their similarity to the shoes worn by a
defendant justifies an inference that the prints were made by the defendant’s
shoes. Often, there is not much that science can add to a comparison of a cast or
photograph made of a footprint found at a crime scene with the shoe of a suspect.
Thus, recognizing similarities in any peculiar markings between the cast or
photograph and the shoe, as well as comparing their sizes, can often be done by
the jury with as much proficiency as an expert witness. In many cases, therefore,
expert testimony is not needed or permitted. Of course, if the identification
involves the use of scientific methods requiring technical expertise, then an expert
witness will be required.

Even though expert testimony is not necessary when comparing footprints with a
suspect’s shoes, there are times when a footprint may have other significance to a
case, and an analysis of the print may require the services of a footprint expert.
Also, there are persons who are expert trackers or who have made a study of
walking patterns; as experts, these persons can determine certain facts with
considerable accuracy by examining tracks at a crime scene. For example, an
expert may determine whether the suspect walked or ran from the scene, walked
with a limp, was carrying something heavy, or was having difficulty with
equilibrium. Additionally, there are experts in the examination of footwear. These
experts are trained in determining the size and type of shoe that made an imprint
at a crime scene. For example, the prosecution in the first criminal trial of O.J.
Simpson called an expert to testify with respect to the bloody shoe prints leaving
the scene of the double murder. The expert was highly qualified; he had a
master’s degree in forensic science, had extensive training in analyzing shoe
prints as an FBI analyst, taught classes, and authored articles and a book
concerning shoe print evidence. The expert testified, based on his examination of
the bloody shoe prints, to the size, brand, and style of the shoe worn by the person
tracking the blood while leaving the scene.

Psychologists and Psychiatrists

It is recognized that doctors specializing in psychiatry or psychology may state

their opinion on the sanity of a person, but a perplexing problem arises as to
whether a psychologist or psychiatrist may state an opinion on the sanity issue. It
is known that sanity is a matter of mental illness. Thus, a psychologist or
psychiatrist who is trained and experienced in mental illnesses may qualify as an
expert on mental illness and express an opinion on the sanity of a person. The
problem arises in criminal cases in which the expert may testify that the accused
suffered from a mental illness, but the expert may not state that the accused did or
did not have the mental state or condition constituting an element of a crime or
defense thereto; that issue is for the jury to determine.25

Page 143

Polygraph Examiners

Concerted efforts have been made by those interested in polygraph examinations

to have the results of these examinations admitted in evidence by the courts.
Polygraph experts claim that the polygraph is now beyond the experimental stage
and is a recognized scientific instrument capable of detecting when a person is
being truthful or not. Although the courts have agreed that there has been
substantial progress in improving the equipment and the operator techniques used
in administering polygraph tests, very few courts will allow polygraph evidence
to be admitted for any purpose.26 The judicial aversion to polygraph evidence is
attributable to the view that such evidence lacks reliability. It is alleged that too
many factors can affect the reliability of the polygraph test. These factors include
the emotional condition of the person being examined and his or her physical
condition. Such physical factors as high or low blood pressure, drunkenness,
fatigue, or use of drugs can lead to unreliable results. The experts in the field
readily admit that these factors can and often do affect the tests, but they argue
that, when these conditions exist, they will be taken into consideration and the
results, if not reliable, will not be used. They also contend that, when conditions
are normal, as is true in most instances, the results should be introduced in
evidence for whatever assistance they may have in aiding the jury in arriving at a
verdict. However, the courts fear that the weight given to the polygraph test by
the jury would, in effect, permit the test to usurp the function of the jury.27 It is
believed that juries often find it difficult to accept the polygraph results as only an
expert’s opinion as to whether the person taking the polygraph test was truthful or
not, and not a proven fact. Some courts take this view even though the judge may
instruct the jury that the test result presented by the polygraph examiner is only an
opinion and the jury members may accept the opinion or reject it as they see fit. A
significant number of courts will allow polygraph test results to be admitted,
provided there is a stipulation by the parties. In other words, the results can be
admitted if there is an agreement among the prosecutor, the defense attorney, and
the defendant to admit such evidence.29

Application Case

In United States v. Scheffer,28 the Supreme Court followed the nation-wide trend
of rejecting polygraph evidence, even though a strong constitutional argument
was offered in support of it. Scheffer, a member of the Air Force, applied for a job
as an undercover drug investigator. As part of the routine qualification for the job,
Scheffer submitted urine samples for drug testing. After submitting the urine
sample but before its results were known, he also submitted to a polygraph test,
the results of which indicated “no deception” when Scheffer denied using drugs.
The urinalysis indicated the presence of methamphetamine. Scheffer was charged
with, among other things, use of methamphetamine at a court-martial. Under
Military Rule of Evidence 707, Scheffer’s attempt to introduce the polygraph test
results was rejected. He appealed, claiming that the exclusion of the evidence that
would prove he did not know he took any drugs—“innocent use”—denied him a
fair trial in violation of the Due Process Clause. In rejecting this constitutional
claim, the Court held that the government has a greater interest in ensuring that
only reliable evidence is admitted at trial. The Court reaffirmed the view that
polygraph evidence is insufficiently reliable to be admitted in a trial to prove that
the subject of a test was either lying or telling the truth.

Page 144

In those jurisdictions in which the courts have not accepted polygraph results,
some prosecuting attorneys have endeavored to have the courts accept in
evidence the refusal of a defendant to take a polygraph test on the grounds that
the refusal proved guilty knowledge or consciousness of guilt. However, the
courts have not generally accepted this refusal in evidence on the grounds that an
accused may refuse to take a polygraph test, not because he or she fears that it
will reveal a consciousness of guilt, but because the test may be unreliable. The
courts likewise have refused to accept in evidence a defendant’s expressed
willingness to take a polygraph test. The courts state that a guilty suspect may be
willing to risk taking the test in the hope that it will erroneously record innocence,
knowing that, even if the test does not reflect innocence, the results cannot be
used as evidence.30

Voiceprint Expert

Individuals have been accepted by the courts as experts in the method of voice
identification known as voiceprints. This method of voice identification consists
of identifying or eliminating an unknown voice among several that are known by
both listening to the voices and visually inspecting a spectrogram. Acoustical
spectrography is the branch of science that consists of composing the voice or
sound into harmonic components and obtaining a visual pattern of the sound. This
pattern is called a spectrogram.

Generally, a voiceprint expert is utilized when a victim receives threatening calls

about bombs, kidnapping, extortion, or other similar dangers and there is an
opportunity to record the assailant’s voice in some manner. Thereafter, if a
suspect is located, his or her voice is also recorded, and the voiceprint expert will
listen to the recordings and endeavor to determine similarities between the two
recorded voices. The expert will also compare the voiceprint patterns displayed
on the spectrograms and form an opinion as to whether the threatening voice of
an unknown individual is identical to that of the known suspect. The expert, if
properly qualified and if called upon to do so, may thereafter express an opinion
concerning the identity of the threatening caller during the trial of the suspect.

FYI

In the California case against Scott Peterson for the murder of his wife, Laci, and
unborn child, an investigator for the California Department of Justice, who was
the department’s polygraph examiner, testified about his interview with Scott
Peterson the day after Laci Peterson vanished. It was not disclosed to news
sources whether the investigator administered a polygraph to Peterson during the
interview. Even if he had administered a polygraph to Peterson, it would not have
been admissible in court. Jurors were not even told that the investigator was a
polygraph examiner.31

Some courts have permitted the voiceprint expert to state an opinion on identity
because it has been held that the voiceprint method of identification has reached a
stage of acceptable reliability whereby the results are accepted as evidence. Some
courts state that the test of admissibility of scientific evidence is whether it has
received general acceptance by recognized experts in the field. The experts in the
field of voiceprint identification attest to its reliability. It is interesting to note that
scientific voiceprint identification has entered the investigative field recently,
compared with polygraph testing, yet voiceprint identification has received
general acceptance by the courts, whereas polygraph results are accepted on a
very limited basis, if at all.

Page 145

Photographers

Except for certain scientific photographs, such as the spectrograph, micrograph,

or X-ray, a photographer does not have to be an expert in the field of photography
to have photographs admitted in evidence. (For further details, see Chapter 14, on
photographic evidence.)
Refreshing Recollection
If a witness, whether lay or expert, is incapable of testifying for the simple
reason that his or her memory has failed, an attorney may refresh the
witness’s memory. Anyone who is going to testify about matters contained
in detailed records, including law enforcement officers, should review the
case file and become thoroughly familiar with it before a hearing or trial.
All witnesses should also meet with the attorney, who will question them
and discuss the testimony before trial. This is not so the witnesses can be
told what to say, but to prepare them for their appearance in court. Despite
thorough preparation, a witness may forget a fact while on the stand.
Witnesses are, after all, just human. Fortunately, the law of evidence
provides for assistance in such a situation—the process of refreshing
recollection.

For example, FRE 612 allows for a witness to refer to a “writing” before or
during testimony in an effort to revive his or her memory. The witness
whose memory is to be refreshed must first testify that his or her memory
has temporarily failed and that he or she cannot remember the facts. In
some states, the attorney may refresh the recollection of a witness even if
that witness has not appeared to have a faulty memory. The reason for this
more lenient position is simply that witnesses may believe that they have
remembered everything; examining the writing helps them remember
additional facts.

There is a seemingly infinite number of items that may constitute a writing

for purposes of refreshing a witness’s memory. Moreover, the writing itself
does not have to be admissible in evidence. In fact, a writing does not need
to be used to refresh recollection. All that is required is that the witness
testify that his or her personal recollection is revived after reading or seeing
whatever was used to refresh recollection.

FYI
An attorney may refresh the memory of a witness by the use of leading
questions during examination. While FRE 612 deals only with the use of a
writing to refresh memory, FRE 611(c) allows for the use of leading
questions. As discussed earlier, leading questions are permitted on direct
examination when necessary to develop the witness’s testimony and are
ordinarily permitted on cross-examination. Accordingly, refreshing
recollection of a witness may occur upon either direct examination or cross-
examination.

The witness need not even have prepared the writing, if one is used. In fact,
the witness need not have any connection with the writing. Nor is it
necessary that the writing be made at or near the time of the occurrences
remembered. Finally, the Best Evidence Rule, which will be discussed in
later chapters, is not applicable to writings used to refresh a witness’s
memory. In sum, anything may be used to revive a witness’s memory, as
long as it is genuinely calculated to accomplish such a purpose. Examples
include a note, a memorandum, a report, a photograph, a newspaper article,
an object, a recording of a song, or an aroma.

Page 146

Some technical aspects of FRE 612 deserve consideration. If the witness

refers to a writing while testifying, opposing counsel has an absolute right
to inspect the writing referred to, to cross-examine on it, and to introduce
pertinent portions of it into evidence for any relevant purpose. On the other
hand, if the witness refers to a writing prior to testifying, opposing counsel
may inspect the writing “if the court decides that justice requires the party
to have those options.”32 In either event, if a party claims that the writing
used to refresh memory contains matters not related to the subject matter of
the testimony, the judge will examine the writing in camera (privately, in
the judge’s chambers) and excise any unrelated portions of the writing. The
judge will then return the remainder to the party seeking to refresh memory.
Additionally, if, in a criminal case, a writing is not produced or delivered by
the prosecution pursuant to a court order, the court may strike the testimony
from the record or even declare a mistrial.

Past Recollection Recorded

A common situation at trial, especially for witnesses who testify about
matters recorded in extensive reports or who testify often, is that the
witness’s memory cannot be refreshed as described in the previous section.
When this occurs, an honest witness should admit to the problem, as quite
often the forgotten fact has been recorded in a writing that will qualify as
evidence as past recollection recorded. If the witness whose memory has
failed and cannot be revived is able to testify that the writing used to
attempt to refresh recollection contains an accurate account of the forgotten
fact, then the contents of the writing itself are admissible in evidence in lieu
of the witness’s testimony.

There are a few technical aspects to the matter of past recollection recorded.
First, before the writing may be used as past recollection recorded, the
witness must be shown to have exhausted present recollection by failing to
have recollection refreshed. Second, the writing must have been prepared
by the witness, prepared at the witness’s direction, or adopted by the
witness. Third, the witness must be in a position to swear that at one time he
or she had knowledge of the contents and that the contents were true and
correct. Fourth, the evidence in the form of the writing is hearsay. (Hearsay
will be discussed in greater detail in Chapter 7.) Fifth, the evidence is
admissible hearsay because, as Chapter 7 will explain, there is an exception
to the hearsay rule for past recollection recorded. Finally, the evidence,
though admissible, may only be read to the jury; the writing is not
admissible unless offered by the opponent.

FRE 803(5) contains the rule relating to past recollection recorded as an

exception to the hearsay rule and states:

Recorded recollection. A record that (a) is on a matter the witness

once knew about but now cannot recall well enough to testify fully and
accurately; (b) was made or adopted by the witness when the matter
was fresh in the witness’s memory; and (c) accurately reflects the
witness’s knowledge.

Page 147

If admitted, the record may be read into evidence, but may be received
as an exhibit only if offered by an adverse party.
Thus, if a law enforcement professional conducts an investigation and while
doing so writes down findings in a notebook, or records an interview in a
notebook while questioning a person, the notebook may be used to refresh
recollection. If, after reviewing the notes, the witness still does not recall
the facts, the contents of the notebook may be offered as evidence.

Because the notepad is a potentially integral piece of evidence, great

emphasis has been placed on it and on its continuing retention and
preservation. The emphasis has been so great that many an officer’s locker
is so cluttered with old notepads that it resembles the back room of a
secondhand bookstore. In certain instances, the defendant may be granted a
right of discovery, allowing the defendant to review the officer’s notes.
Both state and federal courts, though, are reluctant to permit a defendant to
inspect notes, memoranda, or reports prepared by law enforcement
personnel in connection with a particular case. Such notes and memoranda
constitute privileged information, as the work product of the officers, and
only in compelling and exceptional circumstances may the accused inspect
such notes.

An accused may overcome the privilege and obtain discovery if the officer
is testifying as a witness. Several conditions may apply. First, the right to
inspect the officer’s notes may arise if the officer is using such notes to
refresh his or her memory while on the stand. Second, if the officer was an
eyewitness to the crime or is a witness to place the defendant at the scene of
the crime, the accused may have the right to inspect the officer’s notes or
report in connection with the crime. Finally, and most important, the
accused is absolutely entitled to have the prosecution provide all
exculpatory evidence (evidence that exonerates the accused) within the
prosecution’s possession. Moreover, if the accused requests such
information, then the prosecution must carefully scrutinize all evidence in
searching for any exculpatory information. If the prosecution, either
intentionally or unintentionally, fails to provide requested exculpatory
evidence, the accused’s right to due process of law or a fair trial may be
violated. The right of discovery is discussed in more detail in Chapter 12.

ON THE JOB
In the law enforcement academy, students are taught to carry a small
notepad in their shirt pocket. This notepad will be used to write down
witness information, dates and times of incidents, arrival and departure
times, special notes about crimes and criminals, informant information, and
other work-related information that a patrol officer needs on a day-to-day
basis. The section on past recollection recorded noted that, if an officer still
cannot recall the pertinent information, his or her notes may be offered as
evidence. If an officer’s notepad is offered into evidence and is accepted by
the court, that notepad may be open for inspection and analysis in court.
This means that even the non-work-related information will be viewed by
the judge and attorneys, including defense counsel. Additionally, and
perhaps even more potentially damaging to an officer’s professional
reputation, defense counsel will have the opportunity to cross-examine the
officer, in open court, based on that information. Many officers have been
red-faced in front of the court and the jury when personal information
meant for their eyes only was suddenly the topic of a blistering cross-
examination in open court.

Officers should not tear out any pages of their notepads. If they do, the
missing pages will be used against them on cross-examination. Some
agencies require officers to save all notes. However, most allow the officer
to write a report from the notes and then destroy them. In an instance in
which notes have been destroyed, should the officer be questioned about
their destruction, he or she should reply that all pertinent information is
contained in the official report.

Page 148

Investigative Report as a Means of Refreshing

Recollection and Past Recollection Recorded
An officer’s investigative report, much like the officer’s notepad, may be
used to refresh the officer’s memory while he or she is testifying as a
witness. The report, as previously mentioned, need not have been prepared
by the officer or at the officer’s direction for purposes of refreshing his or
her memory. Accordingly, the report may be one prepared by a police
stenographer as dictated by the officer, or the report may be one prepared
by another officer. Additionally, the report need not have been made at or
near the time of the events that are reported.

Laying the Foundation for Past Recollection

Recorded
The rules regarding refreshing memory are simple when compared with the
steps that must be taken before an officer’s investigative report may be
admitted into evidence as a recorded recollection. If a proper foundation is
laid for the recorded recollection exception to the hearsay rule, the
investigative report or notepad may then be read into evidence in lieu of the
officer’s testimony.

The prosecuting attorney must carefully follow correct procedure before a

police record or memorandum can be introduced into evidence. First, the
attorney must show that the officer-witness once had personal knowledge of
the matters contained in the record or memorandum; this issue is
determined by the jury, whereas the remaining conditions are determined by
the judge. Second, it must be shown that the officer made or adopted the
record or memorandum when the matters were fresh in the officer’s
memory. This second step does not mean that the officer must have adopted
or made the investigative report or notes at the same time or immediately
following the events reported, only that the events were still fresh in the
officer’s memory when the report was made. The time lapse between the
events and the recording of those events, though, is probative in
determining whether the matters were still fresh in the officer’s memory.
Third, the record or memorandum must accurately reflect the knowledge
the officer once had. Finally, the prosecuting attorney must show that the
testifying officer currently has insufficient recollection to enable him or her
to testify fully and accurately. This final requirement is satisfied if it is
shown that the record or memorandum fails to refresh the officer’s
recollection. Of course, the defense attorney is still entitled to cross-
examine the officer, but such questioning will be limited because there is no
testimony. The attorney may cross-examine the officer regarding who made
the report if the officer-witness adopted the report, or the officer may be
questioned about how soon the report was made after the occurrence of the
event. Otherwise, there is little that may be asked on cross-examination.

Page 149

Some examples of laying the foundation for recorded recollections may be

helpful at this point. The witness may testify that he or she remembers
making an accurate recording of the event in question, which he or she now
no longer sufficiently remembers. Alternatively, the officer may testify that
he or she routinely makes accurate and complete records of this kind. If the
officer has totally forgotten the situation within which the recording was
prepared, then the officer may testify that he or she is confident from the
circumstances that he or she would not have made or adopted such a
description of the facts unless that description accurately reflected the
observations at the time.

In the event that the record or memorandum is admitted into evidence, it

may only be read into evidence by the witness or the attorney. This means
that the investigative report or officer’s notepad may not be received as an
exhibit for the jury to take into the deliberation room. The only occasion in
which the report or notepad may be received as an exhibit is when the
defense offers it as evidence.
Review and Application
Summary
1. The one essential characteristic required before a person may become
a witness is that he or she has personal knowledge of the matter to
which he or she testifies.

2. The Constitution, in the Sixth Amendment, gives the accused the right
to compulsory process and to confrontation of his or her accusers.
These rights guarantee the accused the right to call witnesses.

3. A leading question is one that suggests the answer in the question.

4. Five exceptions to the rule prohibiting leading questions on direct

examination are questioning (1) with respect to undisputed preliminary
or inconsequential matters; (2) when a witness is hostile, unwilling,
frightened, or biased; (3) with respect to a child or adult witness who
has difficulty communicating; (4) a witness whose recollection is
exhausted; and (5) when laying a necessary foundation under certain
circumstances.

5. Impeachment is a process or a result that diminishes or destroys the

believability of a witness’s testimony.

6. The five basic methods of impeachment are (1) by contradiction; (2)

by proof of bad character for truthfulness; (3) by proof of prior
inconsistent statement; (4) by proof of bias or motive to falsify; and (5)
by proof of lack of or diminished witness capacity.

7. The subjects on which lay people may give opinions include state of
emotion; speed of vehicles; distances; sobriety or intoxication; age,
identity, and physical condition of a person; weight, color, and value;
character of a person; sanity; and handwriting.
 Page 150

8. Generally speaking, under the FRE an expert may testify if the

scientific, technical, or other specialized knowledge he or she provides
will assist the jury in understanding the evidence or in determining a
material fact.

9. All that is necessary to qualify as an expert witness is scientific,

technical, or “specialized” knowledge that the ordinary person does
not have.

10. The three requirements for expert testimony are (1) the subject matter
of the expert’s proposed testimony must be relevant; (2) the expert’s
field must be one requiring scientific, technical, or specialized
knowledge; and (3) the witness must be shown to have the background
necessary to qualify as an expert in the field.

11. The three bases for expert opinion are (1) personal knowledge of the
expert by actual examination of the evidence; (2) information from any
source usually relied upon by experts in the field; and (3) hypothetical
facts from which the witness is asked to draw conclusions.

12. A witness’s recollection may be refreshed when the witness

experiences a temporary failure of memory or, in some states, when
the answer given clearly indicates to the questioning attorney that there
has been a failure of memory. Anything may be used to refresh
recollection, for example, notes, memoranda, reports, photographs,
newspaper articles, objects, song recordings, or aromas.

13. The steps required before a witness’s recorded recollection may be

admitted into evidence are (1) the witness’s present memory must be
shown to have failed; (2) any attempt to refresh recollection must also
fail; (3) the witness’s recollection has been shown to be exhausted; (4)
the witness must identify some recording of the recollection that the
witness can swear was complete and accurate at the time it was made,
and that the witness at one time had personal knowledge of the
information recorded; and (5) the recorded recollection may only be
read to the jury, not shown to them.
Key Terms
subpoena 117

subpoena duces tecum 117

rule on witnesses 120

lay witness 121

leading question 121

direct examination 121

narrative 122

cross-examination 122

adverse witness 122

impeachment 123

contradiction by cross-examination 123

prior inconsistent statement 124

bias 124

unresponsive answer 126

perjury 126

lay opinion testimony 126

conclusion 126

expert witness 132

Frye test 133

 Daubert-Kumho test 133

criminalist 134

voir dire of a proposed expert witness 134

hypothetical questions 138

medical examiner or coroner 139

document examiner 140

fingerprint expert 140

accident investigator 141

crimes experts 141

Page 151

DNA experts 142

footprint expert 142

expert on mental illness 142

polygraph experts 143

acoustical spectrography 144

voiceprint expert 144

refreshing recollection 145

past recollection recorded 146

Questions for Review

1. What must a person possess in order to be a witness?
 2. What two rights in the Constitution guarantee that an accused person
may call witnesses on his or her behalf?

3. What is a leading question?

4. What are the five exceptions to the rule prohibiting leading questions
on direct examination?

5. What is impeachment?

6. What are the five methods of impeachment?

7. What are some subjects on which lay persons may give opinion
testimony?

8. Under what circumstances can expert testimony be introduced?

9. How may a witness be qualified as an expert?

10. What are the three foundational requirements for an expert’s

testimony?

11. What are the three bases for expert opinion?

12. When and how may a witness’s recollection be refreshed?

13. What are the steps that must be taken before a witness’s recorded
recollection may be admitted into evidence?

Workplace Applications
1. You know that many of the daily reports you write could end up being
used in court to prove a defendant’s guilt. Keeping in mind that you
will be called as a lay witness to explain your report, write a narrative
report describing a domestic dispute call. Describe the emotions of the
quarreling parties in a way that is free from misinterpretation by the
jury and is difficult for the defense attorney to misconstrue during your
cross-examination.
 2. After 15 years in the narcotics division and hundreds of drug arrests
and court appearances, the head of the division thinks you are ready to
qualify as a drug detection expert. List the factors that would qualify
you as an expert.

3. You are called upon to testify in a drug trafficking case. You have
written several reports over the course of your first year on the job,
have had your deposition taken, and have testified before a grand jury.
You read all these statements before trial and discover that, over the
period involved, there have been some innocent inconsistencies in
your story. As a result of these inconsistencies, you may appear to the
jury to be mistaken, confused, or even lying. The opposing lawyer may
be able to discredit you totally during cross-examination. What can
you do to lessen the impact of the inconsistencies without damaging
the case? What do you tell the prosecutor, if anything?

4. While serving as a training officer several years ago, you had a new
trainee take and write up a burglary report. You have now been called
to testify about the burglary. The trainee is no longer with the
department and is unavailable to testify. You have no recollection of
the incident, and reading the not-so-well-written report does not help.
The prosecutor wants to admit the report as a past recollection
recorded. You are uncertain about the accuracy of the report because
you remember that the trainee was not a very good report writer. Can
the report be admitted?

Page 152

Ethical Dilemma
1. The prosecutor asks you to locate a witness, so that he can be
subpoenaed to appear in a murder trial. You know that the witness is
hostile and could damage the case. You use the normal procedures to
find the witness, but without success. You know that the court will be
satisfied with your efforts and deem the witness unavailable. Then you
hear a reliable rumor that places the witness in a specific town in
 another state. Should you pursue the rumor further, tell the prosecutor
about it, or just let the matter drop?

Endnotes
1. 380 U.S. 400 (1965).

2. The United States Supreme Court has interpreted the Compulsory

Process Clause as giving criminal defendants the right “to the
government’s assistance in compelling the attendance of favorable
witnesses at trial and the right to put before a jury evidence that might
influence the determination of guilt.” Miriam Riskind, Can a Client Be
Held Liable for Attorney’s Misconduct? Let the Client Beware! 15 T.
Marshall L. Rev. 103, 114 (1989–1990) (citing the Court’s opinion in
Pennsylvania v. Ritchie, 480 U.S. 39 (1987)).

3. Id. at 115.

4. Id. at 103, citing Taylor v. Illinois, 484 U.S. 400 (1988).

5. Id. at 114, citing Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

6. Fed. R. Evid. 611(c) addresses the subject of leading questions.

7. This hypothetical example is based on United States v. Copelin, 996

F.2d 379 (D.C. Cir. 1993).

8. See Fed. R. Evid. 613(b), for the federal requirement.

9. United States v. Abel, 469 U.S. 45 (1984).

10. Fed. R. Evid. 701.

11. Holland v. Zollner, 102 Cal. 633, 638–39 (1894).

12. Massachusetts and New York still have the bar against lay testimony
concerning the sanity of the accused. Gorham v. Moor, 84 N.E. 436
(1908); Matter of Estate of Vickery, 561 N.Y.S.2d 937 (N.Y. App. Div.
 1990). Neither Delaware nor Hawaii has specifically decided the
question yet.

13. Fed. R. Evid. 702.

14. 509 U.S. 579 (1993).

15. 526 U.S. 137 (1999).

16. The Frye standard was derived from the case of Frye v. United States,
293 F. 1013 (D.C. Cir. 1923).

17. This report is available to read online at no charge: see

[Link] (last visited
3/28/09).

18. The summary is also accessible online:

[Link] record_id=12589&page=5 (and
the page following, last visited 3/28/09).

19. See op ed piece of Professor Jennifer Mnookin, appearing in the Los

Angeles Times on February 19, 2009:
[Link]
2009feb19,0,[Link] (last visited 12/1/13).

20. Marshall v. State, 51 A.3d 641, 652 (Md. 2012).

21. See American Bar Association, Criminal Justice Forensic Science Task
Force, Report, Adopted By the House of Delegates, February 6, 2012.

22. Anna Gorman, LAPD Narcotics Analyst Erred; Botched Evidence

Raises Questions on Credibility. Public Defender’s Office Demands an
Accounting, Los Angeles Times, September 4, 2004, at B1.

23. Fed. R. Evid. 705, advisory committee’s note.

Page 153

24. 567 U.S. 50 (2012).

 25. See, for example, Fed. R. Evid. 704(b): In a criminal case, an expert
witness must not state an opinion about whether the defendant did or
did not have a mental state or condition that constitutes an element of
the crime charged or of a defense. Those matters are for the trier of
fact alone.

26. State v. Thompkins, 891 So.2d 1151 (Fla. Ct. App. 2005).

27. State v. McNaught, 713 P.2d 457, 469 (Kan. 1986).

28. 523 U.S. 303 (1998).

29. Cassamassima v. Florida, 657 So.2d 906 (Florida Ct. App. 1995).

30. See West Virginia v. Chambers, 459 S.E.2d 112, 114 (1995)
(“reference to an offer or refusal by a defendant to take a polygraph
test is inadmissible in criminal trials to the same extent that polygraph
results are inadmissible”).

31. Diana Walsh & Stacy Finz, The Peterson Trial, S.F. Chronicle, July 7,
2004, at B1.

32. Fed. R. Evid. 612 (a) (2).

Design Element: ©Ingram Publishing

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Credibility and Impeachment

wavebreakmedia/Shutterstock

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Chapter Outline

Credibility

Basic Methods of Impeachment

Bad Character for Truthfulness

Evidence of Conviction of Certain Crimes

 Misconduct Not Resulting in a Conviction

Opinion and Reputation Evidence Relating to Truthfulness

Contradiction

Prior Inconsistent Statements

Bias or Motive to Falsify

Witness Incapacity

Impeachment: Other Issues

Self-Impeachment

Lack of Religious Belief

Rehabilitation of Impeached Witness

Reasons for Impeaching One’s Own Witness

Self-Incrimination

Claiming the Privilege Against Self-Incrimination

Waiver of Privilege Against Self-Incrimination

Witness’s Immunity Against Prosecution: Procedure in Granting

Immunity

Defendant’s Privilege Against Self-Incrimination

What Is Not Self-Incrimination

Review and Application

Chapter Objectives

The previous chapter discussed witnesses and touched briefly upon the subjects
of this chapter, credibility and impeachment. After reading this chapter, you will
be able to:
Name the four components of witness capacity.

List the five basic methods of impeaching a witness.

Name the two types of criminal convictions that may be admitted to impeach
a witness.

Explain the difference between the balancing test applied to the admission of
evidence of a conviction of a criminal defendant who testifies and the
balancing test of FRE 403.

Describe the types of crimes that are automatically admissible to impeach a

witness.

Explain the principal restriction upon impeachment by the use of evidence of

misconduct not resulting in a conviction of a witness.

Name the one requirement for the introduction of extrinsic evidence of a

prior inconsistent statement.

State the rule governing the impeachment of a witness on the grounds of

bias.

State the rule governing the impeachment of one’s own witness.

Describe when a witness may invoke the privilege against self-incrimination.

Name the prevailing form of witness immunity in the United States.

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Credibility
Credibility is the quality in a witness that renders the witness’s evidence
worthy of belief. If a witness is able to impress the jury with the ability to
observe correctly, to retain observations, and to relate them convincingly on
the witness stand, the witness will be perceived by the jury as being very
credible. In other words, the credibility of a witness is entirely dependent
upon how much the jury believes the testimony—how much credit the jury
gives it. A jury may believe the entire testimony, or it may believe part of it
and not believe other parts. It is not unusual for a jury to disbelieve all the
testimony given by a witness.

ON THE JOB

One way for a law enforcement professional to appear credible to a jury is

to be prepared. As with any witness, he or she should review any prior
testimony or statements that he or she made or wrote. He or she should also
try to meet with the prosecutor before trial to run through the important trial
issues and to discuss the types of questions that will be asked on direct
examination, as well as potential cross-examination questions. The goal is
not to rehearse the witness’s answers but, rather, to make the witness more
comfortable, relaxed, and ultimately more credible to the jury. Maintaining
good eye contact with the jury, prosecutor, and judge also helps build
credibility.

Not all false testimony is the result of lying. A witness may give testimony
that is truthful, accurate, and clear, or a witness may give testimony that is
untruthful, inaccurate, or distorted. Moreover, a witness’s testimony may be
false because the witness is lying or merely mistaken. Figure 6–1 shows the
general credibility instruction given to jurors in criminal cases in federal
trials in the United States.
You … are the sole and exclusive judges of the credibility of each
of the witnesses called to testify … and only you determine …
weight that their testimony deserves. …

In making your assessment of that witness you should carefully

scrutinize all of the testimony given by that witness, the
circumstances under which each witness has testified, and all of
the other evidence which tends to show whether a witness, in
your opinion, is worthy of belief. Consider each witness’s
intelligence, motive to falsify, state of mind, and appearance and
manner while on the witness stand. Consider the witness’s ability
to observe the matters as to which he or she has testified and
consider whether he or she impresses you as having an accurate
memory or recollection of these matters. Consider also any
relation a witness may bear to either side of the case, the manner
in which each witness might be affected by your verdict, and the
extent to which, if at all, each witness is either supported or
contradicted by other evidence in the case.

Inconsistencies or discrepancies in the testimony of a witness or

between the testimony of different witnesses may or may not
cause you to disbelieve or discredit such testimony. Two or more
persons witnessing an incident or a transaction may simply see or
hear it differently. Innocent misrecollection, like failure of
recollection is not an uncommon human experience. In weighing
the effect of a discrepancy, however, always consider whether it
pertains to a matter of importance or an insignificant detail and
consider whether the discrepancy results from innocent error or
from intentional falsehood. …

(The testimony of a defendant should be judged in the same

manner as the testimony of any other witness.)

FIGURE 6–1 The federal general credibility instruction.

Source: O’Malley, Kevin, F. Grenig, Jay E. and Hon. Lee,

William C. 1A Fed. Jury Prac. & Instr. § 15:01, 6th ed., West,
2022.
Before testifying, a witness is required to take an oath or affirm to tell the
truth. However, a witness might not tell the truth for a number of different
reasons. Recall that witness capacity, discussed in Chapter 5, consists of
perception, memory, narrative ability, and sincerity. A deficiency in
perception, for instance, if the witness was unable to observe correctly, can
result in the witness honestly believing that he or she saw something that
was not, in fact, the reality. Poor memory may lead to original observations
becoming so confused that a witness gives an unintentionally inaccurate
account of what was seen. A person who cannot speak effectively, because
of a speech impediment, for example, cannot be understood. In terms of
sincerity, a witness may have some interest in the case, sympathy for one
side or a prejudice against the other, or a financial interest in the outcome.
Any of these factors may cause a witness to consciously or unconsciously
color testimony toward a particular side. In addition, some persons, for any
number of reasons, intentionally falsify their testimony.

All of these possibilities affect the credibility of the witness. If the jury is
unaware of these factors, jurors may still believe the story as related by a
witness, irrespective of how false or inaccurate the testimony may have
been.

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ON THE JOB

Out in the field, law enforcement professionals make a lot of credibility

assessments. They decide which witnesses to believe or which ones to give
little credence to. Many times, a person’s credibility will have to be judged
based upon that person’s behavior. Factors that the professional will
evaluate include a person’s body language, such as his or her refusal to look
the investigator in the eye or excessive fidgeting; a witness’s emotions, such
as a father not being upset about his missing infant; and possible
motivations, such as a grandmother trying to protect her gang-member
grandson. Sometimes the law enforcement professional bases the
assessment of the witness on a gut feeling that someone is lying or that his
or her story does not ring true.
Thus, in effect, when the law enforcement professional writes reports, he or
she is the first person to record credibility factors that will help the
prosecutor decide whether to charge a person with a crime or determine
which witnesses to call, and ultimately will aid the jury in reaching a
verdict. With this in mind, the law enforcement professional should be sure
to record his or her perceptions in this regard.
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Basic Methods of Impeachment

Impeachment is the process by which the credibility of a witness is
attacked. There are five basic methods of impeaching a witness:

1. by showing that the witness has a bad character with respect to the trait
of truthfulness;

2. by contradiction;

3. by showing that the witness has made statements inconsistent with his
or her present testimony;

4. by showing that the witness is biased; and

5. by showing that the witness has a failure or deficiency in the ability to

perceive, remember, or narrate.

The need for impeachment of a witness is, of course, very much a function
of the significance of the witness’s testimony to the outcome of the case. In
many instances, counsel will not even attempt to impeach a witness’s
testimony because the testimony is not significant enough to warrant the
time and effort. However, the testimony of the law enforcement
professional is usually very significant in a criminal trial. Therefore, there is
normally a strong incentive for the defense to attack the witness’s
credibility in such cases. For this reason, the various methods of
impeachment, discussed in detail in this chapter, should be carefully
studied.

Before discussing the methods of impeachment in detail, it will be useful to

consider the general procedure followed in making attacks upon the
credibility of witnesses. As pointed out in Chapter 2, detracting from the
witness’s credibility, if possible, is a major goal of cross-examination. In
almost all instances, impeachment begins with cross-examination of the
witness. But another goal of cross-examination is to present the witness’s
testimony in the light most favorable to the cross-examiner’s case, if
possible. And yet another goal of cross-examination is to safeguard the
accuracy and completeness of the testimony. Certain points mentioned
during direct examination may be clarified. Or such points may be brought
forth in greater detail and their accuracy measured. During this
measurement of accuracy, it may be determined that the witness did not
actually recall the details and is now confused concerning them. Thus, the
process of impeachment begins.

Attempts to impeach a witness may be well founded. If a witness has

inaccurately related facts on the witness stand, the inaccuracies should be
brought out during the cross-examination, and an attack upon the witness’s
credibility is in order. Not all witnesses are impeachable, however. If a
witness’s testimony seriously damages the cross-examiner’s case, there will
be every incentive to attack the witness’s credibility. However, an attack
upon the witness that fails to shake the witness’s credibility may very well
backfire and hurt the cross-examiner’s case even further.

If the cross-examination is aimed at impeachment, a witness may be

questioned on a number of matters that seem to have no relationship to the
issues of the case. Remember that the scope of cross-examination is limited
to the subject matter that was introduced during direct examination.
However, a witness’s credibility is almost always relevant for cross-
examination. Even if a judge is strict in ensuring that the scope of the
subject matter is carefully limited, he or she will usually permit
considerable liberty in allowing questions that address credibility. If
questions seem misdirected, the cross-examiner may have to prove to the
satisfaction of the trial judge that the questions are designed for
impeachment purposes. However, the lengths to which the cross-examiner
may go in questioning the witness are entirely up to the discretion of the
trial judge.

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In some instances, the effort to impeach a witness may not take place
through the cross-examination but, rather, through the use of testimony of
an impeaching witness or the introduction of an impeaching document or
object. The impeaching witness may merely contradict the testimony of the
first witness. The impeaching witness may, however, testify that a witness
has a bad reputation for truthfulness or testify in an effort to prove bias or
prejudice on the part of the first witness. A document may be introduced to
prove that, contrary to what a witness testified, he or she did make a
statement inconsistent with that prior testimony. In many instances, efforts
to impeach a witness may be made by a combination of cross-examination
and impeaching witnesses or other evidence.
Bad Character for Truthfulness
Proof of a trait of character relating to untruthfulness may take the form of
the following:

1. evidence of conviction of certain crimes;

2. questioning about bad conduct that did not result in a conviction;

3. evidence of a reputation for untruthfulness; or

4. opinion testimony regarding untruthfulness.

This evidence is restricted in both form and content. Proof of character is

severely restricted under the law of evidence and will be discussed in detail
in Chapter 11. In short, according to the character evidence rule, evidence
of a trait of character to prove a person’s conduct in conformity with that
trait is inadmissible, with a few exceptions. For example, introducing proof
that a defendant in an auto theft case previously stole a car, to help prove
guilt in the current case, is prohibited by the rule. One of those few
exceptions is proof of a trait of bad character of a witness for truthfulness.

Evidence of Conviction of Certain Crimes

A common law rule relating to witness competency was that a convicted
felon was incompetent to testify. As described in Chapter 4, the modern law
of evidence declares that all persons are competent to testify, thus
eliminating the common law grounds for incompetency, including
conviction of a felony. However, the modern rules of evidence relating to
character and impeachment still retain vestiges of the old incompetency
notions. One of these vestiges is the rule that a person convicted of a crime
punishable by imprisonment for a term of more than a year or by death
(essentially, a felony) may be impeached by proof of that conviction. This is
so even if the conviction is for a crime that has nothing to do with
truthfulness or honesty. For example, a crime of violence, such as assault or
rape, does not involve dishonesty as does a crime such as perjury or
deceptive practices. The theory underlying the admission of evidence of
conviction of such crimes is that a person who would commit such a serious
offense is of questionable credibility as a witness. At the very least, the jury
is entitled to consider the fact of the conviction as it relates to the witness’s
credibility.

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Two types of criminal convictions may be admitted to impeach a witness.

First, as already stated, is a conviction for a crime that is punishable by
more than one year’s imprisonment or by death, essentially a felony.
Second, a conviction for a crime involving dishonesty or false statement,
regardless of the potential or actual punishment, may be admitted. These
rules are according to the FRE (see Rule 609) but are consistent with those
found in most states prior to the adoption of the FRE. In those states where
the FRE have not been adopted, there may be some deviation from the rules
as stated.

If the witness is not the accused in a criminal case and the conviction is one
punishable by imprisonment in excess of a year or by death, under the
FRE,1 the evidence of the conviction must also be found by the trial judge
to be logically relevant without being substantially outweighed by the
danger of unfair prejudice, and the like, under FRE 403. When the witness
is also the accused in a criminal case, a different balancing test applies to
convictions under this rule. In such a case, the evidence is inadmissible if
the unfair prejudicial effect of the evidence merely outweighs the probative
value. This special balancing test differs from the Rule 403 test in that the
word “substantial” has been removed and, therefore, the prejudicial value
has only to be slightly greater than the probative value for the evidence to
be prohibited. If the conviction is one for a crime involving dishonesty or
false statement, under the FRE,2 the evidence is automatically admissible
and is not subject to either balancing test.

Felony convictions that qualify for admissibility for impeachment are those
for offenses that are punishable by imprisonment for more than a year or by
death. It does not matter what the actual sentence was. Even if a person was
not imprisoned, the conviction would still qualify for impeachment
purposes under the rule. For example, assume that a person is convicted of
grand larceny for stealing a diamond ring from a department store. Assume
further that, since it was his first offense, or for other reasons, the judge
imposed a sentence of five years but suspended the sentence and placed the
defendant on probation. This conviction could be used to impeach the
convicted person, should he appear as a witness at a subsequent trial.

The crimes that qualify for impeachment regardless of the penalty imposed,
and without balancing for the potential prejudicial nature of the evidence,
are much more narrowly defined. Crimes involving dishonesty or false
statement include “perjury or subornation of perjury [inducing another to
commit perjury], false statement, criminal fraud, embezzlement, or false
pretense or any other offense … the commission of which involves some
element of deceit, untruthfulness, or falsification bearing on the accused’s
propensity to testify truthfully.”3 Beyond this description contained in the
legislative history of the FRE, there is substantial difference of opinion as to
what crimes are within the rule.

MYTH FACT
A person convicted of a
A person convicted of a felony is competent to
serious crime, a felony, is
be a witness, but the felony conviction may be
not competent to be a
introduced to impeach the witness’s credibility.
witness.

Page 161

There are some other restrictions on the admissibility of evidence of

convictions of crimes for impeachment purposes under the FRE. Generally,
only convictions ten years old or less are admissible (the ten years is
measured from the date of release from confinement). Evidence of a
conviction is not admissible if the conviction was the subject of a pardon,
an annulment, or a certificate of rehabilitation under certain circumstances.
Evidence of juvenile adjudications is generally not admissible. With respect
to both the time limit and juvenile adjudications, the trial court may, under
certain circumstances, allow the evidence to be used.

Misconduct Not Resulting in a Conviction

Evidence relating to conduct that might show the witness is not to be trusted
is not admissible if it did not result in a conviction. For example, evidence
that the witness lied on his or her income tax returns for the last ten years
would be inadmissible in court, even though it could shed some light on the
witness’s credibility, unless the witness was actually convicted of tax
evasion. However, under FRE 608(b), inquiry may be made into specific
acts of misconduct that relate to truthfulness. Thus, the cross-examiner of
the witness who lied on his or her tax returns but was not convicted of a
crime could ask, “Isn’t it true that you lied on your tax returns for the past
ten years?” There are two requirements or restrictions that must be met
before the cross-examiner can even ask this question. First, the cross-
examiner must have a basis-in-fact for asking the question. In other words,
no unfounded fishing expeditions are permitted for this form of cross-
examination. Second, the cross-examiner must accept the witness’s answer.
No evidence may be presented to prove the acts of misconduct. There may
be further cross-examination of the witness in an effort to bring the
misconduct to light, but, if this questioning is still unproductive, the inquiry
ends despite the cross-examiner’s wishes.

MYTH FACT
Only misconduct
Any misconduct that relates to a witness’s character for
resulting in a
truthfulness may be raised on cross-examination to
criminal
impeach a witness. However, if the witness was not
conviction may be
convicted of a crime, the interrogator must accept the
introduced in
witness’s answer and cannot introduce evidence of the
evidence to
misconduct if the witness denies it.
impeach a witness.

Page 162
Opinion and Reputation Evidence Relating to
Truthfulness
Two other forms of evidence permitted to prove character are opinion and
reputation evidence. A person who has sufficient personal knowledge of
another individual may well be in a position to render an opinion or testify
to the reputation of the character of the person in question. This witness is
often referred to as a character witness. A character witness’s testimony is
limited to opinion or reputation evidence that the first witness’s character
for truthfulness, honesty, or integrity is bad. An opinion is expressed in
terms of what the character witness believes the first witness’s character for
truthfulness is. Reputation evidence is expressed in terms of what the
character witness has heard about the character of the first witness for
truthfulness. Reputation evidence, although hearsay, is admissible within an
exception to the hearsay rule.4

To qualify as a character witness when the testimony is in opinion form, the

character witness must be shown to have close contact with the witness
whose character is being attacked. The contact must be close enough to
enable the character witness to have a sufficient knowledge of the person
upon which to base an opinion as to character. However, the character
witness is forbidden to testify to specific instances of conduct. The
testimony is limited to the character witness’s general opinion.

Similarly, the character witness who testifies to the subject witness’s

reputation for truthfulness must be in a position to know what others say
and think about that person. For this purpose, it is usually necessary to
prove that the character witness has some community with the subject
witness, that is, resides or works in the same area as the subject witness or
travels in the same social circle. Here, too, the character witness is not
permitted to testify about specifics, with respect to the subject witness’s
conduct or specific conversations.

As a response to an attack on a witness’s character for untruthfulness,

dishonesty, or lack of integrity, the side that called the impeached witness
may itself call witnesses in rebuttal. These character witnesses may also
testify in the form of opinion or reputation that the original witness has a
good character for truthfulness, honesty, and integrity. However, evidence
of such good character cannot be presented until the character of the
witness has been attacked.
Contradiction
Impeachment by contradiction is the act of saying the opposite of a
statement or specifically denying a statement. In its simplest form,
impeachment by contradiction is the cross-examiner’s act of merely asking
the witness to deny the fact or facts previously stated on direct examination.
Of course, this form of contradiction is rarely, if ever, successful. Moreover,
asking a witness to deny his or her previous testimony borders on being
argumentative, which is not permitted.

Contradiction through cross-examination may also be achieved by artful

questioning that demonstrates the witness could not be correct. The goal of
artful questioning is to contradict a witness on a small point, and then to use
this small point to impeach the witness’s entire testimony. Taking certain
details and reorganizing them might show that the witness could not have
been correct about the time, location, distance, or some other detail of the
direct examination testimony. For example, assume that the witness was the
victim of a robbery at gunpoint. The witness then testifies to the identity of
the accused from a photographic lineup on April 15, 2019. If cross-
examination demonstrated that the witness was, at that date and time, at the
IRS offices miles away, delivering a request for extension of filing of
personal income taxes, the date of the identification would be contradicted
and the credibility of the witness’s entire testimony would come under
question.

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Contradiction may be achieved by calling a witness to testify to a fact that

directly contradicts a fact testified to by a prior witness. In the case just
described, the cross-examiner might elicit a reaffirmation of the date, time,
and circumstances surrounding the photographic identification on cross-
examination. Then, the cross-examiner, during his or her next opportunity
to present evidence, could call a witness to testify to seeing the previous
witness at the IRS offices at the day and time that the photographic
identification was supposedly taking place. As long as the testimony or
other evidence offered in contradiction is relevant and a proper foundation
is laid, the testimony or evidence is admissible.
Prior Inconsistent Statements
One of the most frequently used means of impeachment is to show that the
witness has made prior statements inconsistent with those being made in the
present testimony. These inconsistent statements may have been made at any time
before the trial, or they may be made during the trial. A witness’s statement
during cross-examination that is inconsistent with the witness’s testimony on
direct examination may impeach the witness. In fact, one of the reasons for
extensive cross-examination is to determine whether the witness will give
inconsistent answers.

Inconsistent statements are logically relevant to impeach a witness because a

person who speaks inconsistently is less likely to be accurate or truthful.
Therefore, any inconsistent statement demonstrates a weakness of credibility,
regardless of the circumstances under which the statement is made. When an
inconsistent statement is used for impeachment purposes, its relevance does not
depend upon the content of the statement being true. Inconsistent statements
offered only for impeachment purposes need not be made under oath.

In a majority of states, particularly those that have adopted the FRE, there is no
special foundation required for the introduction of a prior inconsistent statement.
Therefore, if a witness makes a statement during direct or cross-examination that
is inconsistent with a statement made at any other time, that statement may be
introduced by the opposing party during the time that the party introduces its own
evidence. The only requirement is that the witness who is being impeached must
be afforded an opportunity to explain or deny the statement, and the opposing
party must be afforded an opportunity to interrogate the witness with respect to
the statement.5 As an example, assume that a witness testifies for the defense in a
criminal case, stating that the witness was with the accused in another city on the
day and at the time the crime was committed. Before the trial, the witness told
one of her friends, during a casual conversation, that she was home alone on the
day and at the time the crime took place. On cross-examination, the prosecutor
could ask the witness to reaffirm her testimony that she was with the accused at
the pertinent time. Then, during the rebuttal case, the prosecution could call the
witness’s friend to present contradictory testimony. If the jury believes the
friend’s testimony, the original witness’s statement is impeached by a prior
inconsistent statement.
 MYTH FACT
For a prior inconsistent statement A prior statement is admissible to impeach a
to be used in a trial to impeach a witness, regardless of when or how made, as
witness, the statement must have long as it is inconsistent with the trial
been made under oath and/or at a testimony of a witness, is relevant, and
trial, hearing, or other proceeding. meets certain other minimal requirements.

Page 164
 Several powerful politicians, including former U.S. Attorney General
John Mitchell, shown here, were convicted of perjury during the
Watergate scandal of the early 1970s.

Bettmann/Getty Images

The previous example is but one way to use a prior inconsistent statement to
impeach a witness. Perhaps a more common approach is for the cross-examiner to
confront the witness with the inconsistent statement. This approach would have
the questioner direct the witness’s attention to the circumstances surrounding the
making of the inconsistent statement and asking the witness if the statement was,
in fact, made. If the witness admits making the statement, then the cross-examiner
has succeeded in showing a prior inconsistent statement. If the witness denies
making the statement, then the opposing party will have satisfied the
requirements of FRE 613(b) and may introduce evidence of the prior inconsistent
statement when the next opportunity presents itself.

A pretrial statement by a defendant may also be admitted for impeachment

purposes as a prior inconsistent statement. There are special considerations for
such statements, however. First, the defendant’s statements are independently
admissible as opposing parties’ statements (see Chapter 7). Whether in the form
of a confession, either formal or informal, or just a passing remark, anything an
accused says that is relevant and usable against him or her is admissible insofar as
the hearsay rule is concerned. An example of a usable passing remark is the
following: A police officer arrests Joe and says, “Joe, you are under arrest for
robbery.” Joe says, “What robbery?” The officer says, “Maria’s robbery.” Joe
blurts out, “I was out of town yesterday afternoon.”

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Second, any statement sought to be used against the accused must meet
constitutional and procedural requirements. At the very least, if the statement was
made while the accused was in custody, the familiar warnings required by
Miranda v. Arizona6 must have been given. The warnings must be given and the
accused must waive the Miranda rights before the statement is made, in order for
the statement to be admissible.7 There are also other constitutional requirements
that could make an accused’s statements inadmissible. These include the Fourth
Amendment’s prohibition against unreasonable search and seizure; the Fifth
Amendment’s Due Process Clause, which prohibits coerced confessions; and the
Sixth Amendment’s Right to Counsel, prohibiting interrogation of an accused in
the absence of counsel after indictment. If any of these requirements have been
violated, any statement made by an accused person is rendered inadmissible by
the exclusionary rule. Chapter 9 discusses search and seizure law in detail.

MYTH FACT
A statement made
Although the accused’s statements made after the accused’s
by an accused
rights have been violated are generally inadmissible under the
after the accused’s
exclusionary rules, such statements are admissible to impeach
rights have been
a defendant under certain circumstances. For example, such
violated is
statements are admissible when the defendant testifies at trial
inadmissible
and makes a statement inconsistent with one made after his or
against the
her rights were violated.
accused at trial.

ON THE JOB

A law enforcement officer should be very careful about what he or she says and
how it is said when speaking with defense counsel. This is especially so when an
officer is engaged in casual conversation about the case, particularly in halls and
the courtroom before and during the proceedings. Anything an officer says can be
used against the officer as a prior inconsistent statement. People are particularly
prone to quote others out of context and claim that the quotation is inconsistent
with prior testimony. Officers cannot avoid speaking with counsel, but caution
should be the watchword. A good rule is for the law enforcement officer to avoid
allowing defense counsel to draw him or her into conversations.

If the statement of an accused is offered by the prosecution in a criminal case to

impeach the testimony of the accused, then the exclusionary rules may not apply
and the evidence may be admissible. In other words, if the defendant testifies at
trial and makes statements inconsistent with statements made at the time of arrest,
the prior inconsistent statement may be used to impeach the defendant, even if it
was made under circumstances that violated Miranda.8 In fact, the accused’s
statements may be used for impeachment purposes even if the inconsistency is
asserted by the accused for the first time during cross-examination by the
prosecution.9 If the inconsistency is contained in the testimony of a witness other
than the accused, then a statement taken from the accused in violation of Miranda
cannot be used to impeach.10
Bias or Motive to Falsify
One effective way to discredit the testimony of a witness is to show that the
witness entertains a feeling for or against one side in the trial. For example,
a defense witness may be a close relative of the defendant, and a favorable
bias would be natural. However, aside from pointing out the close
relationship by questioning the witness, it may be difficult to prove bias. On
the other hand, a witness who entertains a feeling of hostility or prejudice
toward one side may have expressed such hostility to someone through
words or acts. These hostile words or acts may be the subject of testimony,
either by the witness or by other witnesses who have heard the words or
seen the acts. For example, a defense witness may have made hostile
remarks to an officer during the arrest of the defendant or may have
attempted to strike the officer. Although this hostility on the part of a
defense witness would not necessarily result in untruthful testimony, there
could well be a prejudice against the prosecution that would color the
testimony. If a witness has made statements showing hostility toward the
police, the victim, or society in general, the prosecuting attorney may be
permitted to ask the witness about those statements. If the witness admits
making them, the witness will be given an opportunity to explain the
statements. If the witness denies making the statements, the prosecution
may present other witnesses in an effort to prove that the statements were
made by the witness or that a hostile act was committed.

Page 166

MYTH FACT
 MYTH FACT
A person who is very
Although bias is always provable in any case,
biased, such as the mother
the witness’s bias, prejudice, or interest in the
of the accused, is so
outcome of the case does not make the
interested in the outcome of
witness incompetent. The jury is merely
the case that he or she is
entitled to take the matter into account in
incompetent to be a
evaluating the witness’s testimony.
witness.

Application Case

Perhaps the most famous instance of bias or prejudice of a witness took

place in the O.J. Simpson trial when Detective Mark Fuhrman was cross-
examined with respect to his prejudice against African Americans and his
use of the expletive “nigger.” The prosecution fought hard to prevent F. Lee
Bailey from pursuing the cross-examination into these matters, but Judge
Ito ruled that Bailey could do so. The result was Fuhrman’s denial and the
defense’s introduction into evidence of excerpts of tape-recorded statements
and other testimony proving that Fuhrman’s statements and conduct did
demonstrate his prejudice. As Bailey argued, the Supreme Court of the
United States has held that bias is always relevant and the denial of an
accused’s right to prove it with respect to important witnesses is a
constitutional issue.11

Bias can take many forms. Any relationship to the parties or subject matter
of a case could give rise to an inference that a witness is biased. In addition
to the more obvious motives to color testimony, a common ground for
impeachment for bias occurs when one coparticipant in a criminal endeavor
agrees to testify against another. If the witness has agreed to testify in
exchange for more favorable treatment by law enforcement, the
prosecution, or the courts, these facts may be brought out on cross-
examination to show that self-interest is involved.

Page 167
FYI

After the trial of Martha Stewart for obstruction and securities fraud
concluded in 2004, Larry Stewart (no relation), the government’s self-
described “national expert for ink,” was arrested and charged with perjury
for false testimony. Larry testified that he conducted tests on an ink notation
of “@60” that Peter Bacanovic, Martha’s former broker, scribbled next to a
list of Martha’s ImClone holdings and determined that Bacanovic had
added the “@60” at a later time. The indictment for perjury arises out of the
fact that Larry took credit for tests another employee performed and that he
never conducted or participated in the exams.

Larry was indicted for perjury after Martha was found guilty. Martha’s
lawyers made motions for a new trial based on the indictment of the
government witness. This motion was denied because there was no
evidence that the prosecution in Martha’s case was aware of the false
testimony. The judge presiding at Martha’s trial concluded, “Because there
is no reasonable likelihood that this perjury could have affected the jury’s
verdict, and because overwhelming independent evidence supports the
verdict, the motions are denied.” Nonetheless, this information surely could
have been used to impeach the government witness, had it been known by
the defense during Martha’s trial.

Ultimately, Larry was acquitted of the perjury charges. When interviewed

afterward, jurors at his trial said Larry’s ego may have caused him to
overstate his role in testing key pieces of evidence at Martha’s trial. Larry
said he would not return to the agency that suspended him.

No matter how biased a witness may appear, however, bias is not a ground
for excluding the witness’s testimony. Moreover, juries regularly believe the
testimony of witnesses who are shown to have interests that could support
the conclusion that they are biased. Everyone is biased or prejudiced to
some extent; jurors decide what weight to give a witness’s testimony by
taking into account all the relevant factors.
Witness Incapacity
As discussed in Chapter 4, the elements of witness capacity are the ability
to perceive, remember, and narrate in an understandable manner, as well as
sincerity. If there is any physical or mental weakness related to any aspect
of these elements, the witness is subject to attack and impeachment. Such
an attack is usually made through cross-examination of the witness rather
than through the introduction of other evidence.

Thus, a witness’s eyesight, hearing, or sense of smell could be questioned

on cross-examination. If the witness usually wears corrective lenses or a
hearing aid and on the occasion of the events testified to he or she did not,
then the witness could be impeached as to his or her ability to perceive. The
witness’s intoxication or drug use at the pertinent time might be introduced
to raise doubts about the witness’s perceptive capacity. Similarly, if the
witness was suffering from some mental infirmity that affected perception,
this fact would be the subject of cross-examination inquiry. Tender years or
old age could influence a witness’s ability to understand what was taking
place at the time of the incident. The ability to see in daylight or at night
and the distance from the event in question are additional factors to
consider.

Any such weakness could also affect the witness’s ability to remember or
narrate the events accurately. An attack upon a witness on any of these
grounds could cause the jury to give the witness’s testimony less weight. Of
course, if the witness denied the infirmity or weakness on cross-
examination, the examiner could introduce affirmative evidence of the fact
at the next opportunity.
Page 168

Impeachment: Other Issues

Self-Impeachment
All too frequently, a witness discredits his or her own testimony without
any attack having been made on the witness. This may be the result of
conduct on the stand, such as the witness’s attitude or manner of speaking.
It may be because of an inability to testify convincingly. It is entirely
possible for a witness who is testifying truthfully to hesitate, repeat, or
become confused to such an extent that the jury believes the witness is
actually fabricating a story. To help prevent such an occurrence, the law
enforcement professional who is a witness should be thoroughly familiar
with the subject of his or her testimony before taking the witness stand.

Lack of Religious Belief

Impeachment by questioning a witness about religious beliefs or opinions is
prohibited by FRE 610. As Rule 610 puts it, “Evidence of a witness’s
religious beliefs or opinions of a witness is not admissible to attack or
support the witness’s credibility.”

Rehabilitation of Impeached Witness

When the credibility of a witness has been attacked by an opposing
attorney, the side that produced the witness need not stand idly by and do
nothing to restore the witness’s credibility in the eyes of the jury. The rules
of evidence permit some effort to be made to rehabilitate the attacked
witness.

When a witness has been attacked on the basis of a prior conviction,

rehabilitating witnesses may be produced to testify in the form of an
opinion that the impeached witness is truthful or that the impeached witness
has a good reputation for truthfulness. It must be remembered that the mere
fact that a person has been convicted of a crime does not mean the person
cannot testify truthfully. On the other hand, the jury may remain suspicious
of the testimony of a person convicted of a crime, especially one involving
fraud or deceit.

Similarly, an attack upon a witness by cross-examination as to misconduct

not amounting to a crime is grounds for rehabilitation by character
witnesses. Such witnesses may attest to the impeached witness’s good
character for truthfulness, either in the form of opinion or reputation
testimony. However, evidence of a witness’s bias does not constitute an
attack on the witness’s character for veracity and would not justify
rehabilitation through the presentation of character witnesses.12

Prior consistent statements are not automatically admissible to rehabilitate a

witness who has been impeached by the introduction of evidence of a prior
inconsistent statement. Prior consistent statements are not generally
admissible, based on the reasoning that, if a witness is inclined to make
false statements, the mere repetition of previous statements does not make
the present testimony any more truthful or credible. On the other hand, if
the impeached witness has been attacked with a claim, express or implicit,
that he or she fabricated a story for some recently developed reason, the fact
that the witness made similar statements in the past may be admissible to
overcome this alleged recent influence or motive. If the prior consistent
statements were made before the impeached witness allegedly developed
the improper influence or motive to falsify, then the prior consistent
statements would be admissible to rehabilitate.13 In fact, prior consistent
statements offered to rebut a charge of recent fabrication or improper
influence are not limited to use for rehabilitation but may be considered as
proof of the matters stated under FRE 801(d)(1)(B). This matter is
discussed further in Chapter 7, which deals with hearsay.

Page 169

Reasons for Impeaching One’s Own Witness

The common law rule was that a party who called a witness vouched for
that witness. Therefore, a party could not impeach its own witness. This is
an archaic rule and has been universally abandoned. The reason for the rule
is obscure, but it may have had its roots in the custom long ago of trying
cases by the number of witnesses who could be procured to swear to the
facts. In any event, the rule today states: “Any party, including the party
that called the witness, may attack the witness’s credibility.”14

Each side in a trial prepares a list of witnesses to be called to testify.

Through the testimony of the prosecution’s witnesses, the elements of the
crime are established and efforts are made to prove beyond a reasonable
doubt the guilt of the defendant. In most instances, these witnesses have
been interviewed by the investigating officer and their stories have been
incorporated into the investigative report. It is logical to assume that, when
interviewed, these persons related facts that they will repeat in their
testimony on the witness stand. They become witnesses for the prosecution.
The defendant’s attorney will also have witnesses for the defense, through
whom an effort will be made to establish the innocence of the accused or to
cast doubt on his or her guilt. These are the defendant’s witnesses.

Generally, a witness belongs to the side calling him or her. This is because
that side needs that witness’s testimony. Neither the prosecution nor the
defense has the power to decide who shall be a witness in the sense of
choosing people because of their superior ability to perceive, testify, or
appear sincere. Moreover, sometimes one side must call a witness who is
necessary to its case but who is not sympathetic to, or cooperative with, the
side calling the witness. In a sense, then, such witnesses do not really
belong to the side who has called them. Additionally, witnesses do not
always come forth with the information expected or present the information
in the form anticipated. When this occurs, it may become necessary for the
examining attorney to impeach the witness.

There are a variety of reasons an attorney may decide to impeach his or her
own witness. An attorney who calls a witness to testify usually presumes
that the witness will testify favorably toward that side. However, attorneys
frequently find that a witness cannot be depended upon to give the
testimony anticipated. This may be especially true for the prosecution,
particularly, for example, in domestic violence cases. Prosecutors do not
like to proceed with cases involving reluctant principal witnesses, but
sometimes, in the public interest, it is necessary to do so. In such a case, the
reluctant witness may completely reverse his or her story on the witness
stand. If the testimony is left uncontested, the prosecution is placed in an
unfavorable position. Such a case is the most common example of when an
attorney should impeach his or her own witness.

Page 170

ON THE JOB

On occasion, a law enforcement officer may be called as a witness for the

“other side.” This is especially true in civil cases, in which an officer may
be sued in his or her official or individual capacity. In these cases, the
officer becomes the defendant and the person filing the suit is the plaintiff.
The plaintiff’s side may call the officer as its witness, attack the officer’s
credibility, and attempt to impeach the officer. Plaintiff’s counsel may limit
questions posed to the officer to those that attack the officer’s credibility. In
this manner, the plaintiff’s counsel hopes to cast doubt on the officer’s
credibility before the jury ever gets to hear the officer’s side of the story.

There are many other situations in which an attorney might wish to impeach
a witness called for his or her side. Even the most cooperative and well-
intentioned witnesses have memory lapses or change their story on the
witness stand. Most of the time, the attorney may jog the witness’s memory
by reminding him or her of some prior statement. However, if that fails, and
the fact is important to the case, the attorney has to resort to some form of
impeachment in order to preserve the fabric of the case. In such an instance,
the attorney will not hesitate to impeach the witness, even though the
person was called as the attorney’s own witness.
Self-Incrimination
As described in an earlier chapter, when a person receives a subpoena to be
a witness, he or she must obey the order to appear, willing or not. A witness
is also required to answer truthfully the questions asked, irrespective of
whom the answers may help or hurt. There is one exception to this rule—
the witness has the right to refuse to answer any question that will be self-
incriminating. The privilege against self-incrimination is probably the most
frequently invoked constitutional guarantee in the courtroom. Certainly, the
privilege has been both idealized and vilified in the media.

The privilege against self-incrimination permits a witness to refuse to

answer any question if the answer would tend to show that the witness is
guilty of a crime and would subject the witness to the danger of prosecution
and conviction. The witness can refuse to answer even though the answer
may not be a complete admission of guilt. The witness may refuse if the
answer merely connects the witness with a crime or would identify
evidence that could link the witness with a crime.

The privilege extends not only to witnesses in criminal trials but also to
witnesses in any kind of trial and most official hearings. It is applicable to
the defendant in a criminal trial as well as to other witnesses. This is why
the courts so carefully scrutinize the admissibility of confessions. The
subject of confessions will be discussed in greater detail in Chapter 8.

Claiming the Privilege Against Self-Incrimination

How far a witness may go in claiming the privilege against self-
incrimination may create problems at trial. Whether a witness may claim
the privilege is not solely the decision of that witness. The decision is
within the discretion of the trial judge. If the question asked is obviously
incriminating, the witness may refuse to answer and that refusal will be
upheld by the judge. If the question asked does not appear to be one that
would incriminate the witness, the witness may still claim the privilege. The
judge may then decide to question the witness in order to determine
whether the witness should be permitted to invoke the privilege. The
witness may be compelled to answer a question when it is clear the answer
is not incriminating, even though the witness may regard it as so. If the
witness absolutely refuses to answer the question after being ordered to do
so, he or she may be held in contempt.

Page 171

In making a determination whether a question is such that the answer may

incriminate the witness, the judge will take into account the immediate
setting of the testimony, other testimony, and the likelihood of possible
prosecution of the witness. To meet the test of possible incrimination, the
judge must attempt to determine whether there is any possibility that the
witness has committed a crime and that the answer might, in some way, link
the witness to that crime. The witness may not refuse to answer a question
because he or she anticipates that the next question might be incriminating.
Also, the fact that the answer will incriminate someone else is not grounds
for refusal to answer the question. The mere fact that the answer to a
question will embarrass or degrade the witness is not sufficient grounds for
refusing to answer.

If a witness is not aware of his or her privilege against self-incrimination, it

is incumbent upon the trial judge to inform the witness. Under some
circumstances, it may be necessary for the witness to seek advice of counsel
before going forward with the testimony and, in appropriate circumstances,
the trial court might even have to appoint counsel to provide the necessary
advice.

Waiver of Privilege Against Self-Incrimination

A witness may waive the privilege against self-incrimination. In other
words, the witness may testify concerning matters that may incriminate the
witness if he or she so chooses. This is the right of the witness, alone. No
one else may claim the privilege for a witness (e.g., a lawyer). Furthermore,
if the privilege is waived, it is waived for the entire matter. The witness may
not testify about some of the facts favorable to the side calling the witness
and then claim the privilege for other unfavorable facts during cross-
examination.

Page 172

The defendant may decide to take the stand and testify, but not waive his or
her privilege against self-incrimination. Although this is unusual, it is
possible. Unless the defendant, during direct examination, testifies in such a
way as to deny the crime generally or testifies to facts and circumstances
relating to the crime, there is no waiver of the privilege and the defendant
cannot be compelled to testify about those facts and circumstances. For
example, assume the defendant is on trial for armed robbery of the patrons
of a beauty salon. One of the victims also testifies at trial against the
accused and, after identifying him as the perpetrator, states that she
recognized him because she saw him “around the high school” she attended
some eight years earlier. If the defendant took the stand during the defense’s
case-in-chief and testified only that he did not attend the high school in
question, the defendant’s privilege against self-incrimination would not be
waived. In such a case, the prosecution would be limited in its cross-
examination of the defendant to the subject matter of his presence at the
high school during the time in question.

MYTH FACT
If the defendant in a
The accused in a criminal case may take the
criminal case takes the
stand and testify in his or her own behalf.
witness stand in his or her
However, doing so usually constitutes a waiver
own behalf, he or she may
of the privilege, in which case the privilege is
testify only to favorable
waived with regard to the entire matter. The
matters and refuse to
accused cannot testify about matters favorable
answer questions about
to him or her and then refuse to answer
matters that are
questions on cross-examination relating to
unfavorable to his or her
unfavorable matters.
case.
Witness’s Immunity Against Prosecution:
Procedure in Granting Immunity
Frequently in the course of criminal investigations, persons are discovered
or apprehended who, for one reason or another, would make better
witnesses than defendants. For example, in a criminal conspiracy there are
normally instigators, leaders, and followers. Under the law, all may be
equally culpable, but the prosecutor may have difficulty proving the case
against the leaders without the testimony of one or more followers. To
secure the testimony necessary to convict the “big fish,” the prosecution
might prefer to have the testimony of the “small fry” rather than placing
him or her on trial also. However, if such a witness were to relate the
necessary facts, the witness could subject himself or herself to prosecution.
To overcome this difficulty, rules termed witness immunity have been
developed under which a witness may be spared prosecution if the witness
furnishes facts that might otherwise incriminate himself or herself. When
afforded this immunity, the witness can be compelled to answer all relevant
questions. If the witness refuses to answer, he or she may be held in
contempt.

There are two types of immunity: (1) use and derivative use immunity and
(2) transactional immunity. Use and derivative use immunity prohibits the
use of any testimony that is specifically immunized, and any evidence
derived from it, in the prosecution of the immunized witness. Transactional
immunity protects the immunized person from prosecution for all activity
the witness mentions in his or her immunized testimony. Transactional
immunity is sometimes referred to as “blanket immunity.” Most
jurisdictions utilize use and derivative use immunity rather than
transactional immunity to limit the effects of immunization.

Prior to 1972, when the United States Supreme Court held that use and
derivative use immunity is consistent with the scope of the privilege against
self-incrimination,15 case law was believed to require only transactional
immunity. Since the Supreme Court ruling, a state may prosecute a witness
granted use immunity as long as the evidence used has been obtained from
sources other than the witness’s testimony.
Page 173

Not only is use and derivative use immunity widely utilized today in the
United States but, when such immunity is granted, both state and federal
courts must recognize each other’s grant of immunity. In the case of
Murphy v. Waterfront Commission,16 the United States Supreme Court held
that, whenever a state compels testimony by immunizing a witness,
testimony and any derivative evidence must be excluded from federal
prosecutions. On the other hand, the Court held that, to be effective, federal
grants of immunity must include use and derivative use immunity sufficient
to bar state prosecutions.

There are times when a witness who has been granted immunity will refuse
to testify even after being jailed for contempt. This incarceration is not a
punishment, but an attempt to coerce the recalcitrant witness into testifying.
The witness “holds the keys” to the jail in the sense that his or her
agreement to testify will open the jail-house doors.

Defendant’s Privilege Against Self-Incrimination

Although a person can be compelled to be a witness, this compulsion does
not apply to the defendant in a criminal trial. The defendant cannot be
compelled to take the witness stand. There was a time, under the common
law rule, when any party, including the defendant, could be prohibited from
taking the stand, even if he or she chose to do so. Today, the defendant has a
right to testify in his or her own defense, but there is no requirement that the
defendant do so, even though he or she may be in the best position to
furnish the information needed to arrive at the truth in the case. The
defendant has the right to remain completely silent. If the defendant
chooses to remain silent, the prosecution and judge may not comment upon
the defendant’s failure to testify. Such comments have been held by the
Supreme Court of the United States to compel the defendant effectively to
be a witness against himself or herself in violation of the privilege against
self-incrimination.17

What Is Not Self-Incrimination

The privilege against self-incrimination relates to “testimonial compulsion.”
The courts have generally held that requiring the defendant to perform
certain physical acts or provide specific physical evidence is not considered
testimony on the part of the defendant. Providing blood, fingerprints, and
hair samples and even speaking words before a witness for voice
identification purposes are matters that are not within the privilege. Even
compelling the accused to exhibit himself or herself before a jury is not
testimonial compulsion within the privilege. The courts have been divided
on the question of whether a suspect can be compelled to give a DNA
sample. The Maryland Court of Appeals, in 2012, decided that requiring
such a sample from an arrestee violated his Fourth Amendment rights. The
United States Supreme Court overturned that decision, holding that, when
officers arrest a suspect for a serious offense, taking and analyzing a cheek
swab of the arrestee’s DNA is, like fingerprinting and photographing, a
legitimate police booking procedure that is reasonable under the Fourth
Amendment.18
Page 174

Review and Application

Summary
1. The four components of witness capacity are (1) perception, (2)
memory, (3) narrative ability, and (4) sincerity.

2. The five basic methods of impeaching a witness are (1) by

contradiction; (2) by showing that the witness has a bad character with
respect to the trait of truthfulness; (3) by showing that the witness has
made statements inconsistent with his or her present testimony; (4) by
showing that the witness is biased; and (5) by showing that the witness
has a failure or deficiency in the ability to perceive, remember, or
narrate.

3. The two types of criminal convictions that may be admitted to impeach

a witness are (1) conviction of a crime that is punishable by more than
one year imprisonment or by death, essentially a felony, and (2)
conviction of a crime involving dishonesty or false statement,
regardless of the potential or actual punishment.

4. The balancing test applied to the evidence of a criminal defendant’s

conviction prohibits the evidence if the unfair prejudicial effect simply
outweighs the probative value. This balancing test operates against the
admissibility of even slightly unfair prejudicial evidence. In contrast,
the balancing test of Rule 403 allows evidence unless the probative
value is substantially outweighed by the prejudicial effect. This
balancing test operates in favor of admissibility of unfairly prejudicial
evidence unless it is substantially more prejudicial than probative.

5. Crimes automatically admissible to impeach a witness are those

involving dishonesty or false statement, including perjury or
subornation of perjury, false statement, criminal fraud, embezzlement,
 or false pretense or any other offense, the commission of which
involves some element of deceit, untruthfulness, or falsification
bearing on the accused’s propensity to testify truthfully.

6. A cross-examiner seeking to impeach a witness for engaging in

misconduct not resulting in a conviction must have a basis-in-fact for
asking a question about misconduct relating to untruthfulness. The
cross-examiner must accept the witness’s answer and cannot introduce
extrinsic evidence to prove the misconduct.

7. The only requirement for the introduction of extrinsic evidence of a

prior inconsistent statement is that the witness who is being impeached
must be afforded an opportunity to explain or deny the statement, and
the opposing party must be afforded an opportunity to interrogate the
witness with respect to the statement.

8. The rule governing the impeachment of a witness on the grounds of

bias is that a witness’s bias is always, or almost always, provable in a
case.

9. The rule relating to the impeachment of one’s own witness is that the
credibility of a witness may be attacked by any party, including the
party calling the witness.

Page 175

10. A witness may invoke the privilege against self-incrimination if the

answer would tend to show that the witness is guilty of a crime and
would subject the witness to the danger of prosecution and conviction.

11. The prevailing form of witness immunity in the United States is use
and derivative use immunity.

Key Terms
credibility 156

impeachment 158
 character evidence rule 159

character witness 162

contradiction 162

inconsistent statements 163

exclusionary rule 165

witness capacity 167

privilege against self-incrimination 170

witness immunity 172

Questions for Review

1. What are the four components of witness capacity?

2. What are the five basic methods of impeaching a witness?

3. What two types of criminal convictions may be admitted to impeach a

witness?

4. What is the difference between the balancing test applied to the

admission of evidence of a conviction of a criminal defendant who
testifies and the balancing test of FRE 403?

5. What types of crimes are automatically admissible to impeach a

witness?

6. When may evidence of misconduct that has not resulted in a criminal

conviction be used for impeachment of a witness?

7. When may evidence of a prior inconsistent statement be used in a

trial?
 8. When may evidence of bias be used to impeach a witness?

9. When may a party impeach a witness called to testify for that party?

10. When may a witness invoke the privilege against self-incrimination?

11. What is the prevailing form of witness immunity in the United States?

Thinking Critically About Evidence

1. The court generally makes it more difficult to admit evidence of actual
convictions than it does to admit evidence based on reputation,
including rumors. For example, a murder conviction cannot be
admitted into evidence if more than 10 years has elapsed since the
murder conviction or release of the defendant from prison, whichever
is later, except under unusual circumstances. However, a witness’s
statement that a person had a reputation of being a murderer could be
admitted, even if it were not true. Why would the court allow such a
statement? What are the circumstances under which the court would
allow it? As you determine your answer, consider a defendant’s claim
of self-defense based upon fear of the victim.

2. David is charged with the murder of Victor. David claims that he and
Victor were having an argument when Victor took a swing at him.
David said he responded in self-defense by knocking Victor to the
ground and “head butting” him until Victor passed out. Victor
subsequently died of a brain hemorrhage. The prosecutor wants to
introduce the testimony of William, who, in an earlier argument with
David, was “head butted” by the defendant until he passed out. The
prosecutor states that the testimony is relevant character evidence, as it
demonstrates that David’s modus operandi in a fight is to “head butt”
his opponent. Should William’s testimony be admitted? What is the
reasoning for your answer?

Page 176

Workplace Applications
 1. A police officer responds to a domestic dispute call for the second time
in one day at the same address. The house is located in an affluent
neighborhood, and the officer recognizes the husband as the CEO of a
major local corporation and a pillar of the community. The wife is a
homemaker with three small children. On the first call, the wife told
the officer that she tore her blouse and got the bruises on her arms and
legs “by falling down the stairs.” The officer suspected that she had
some “help” down the stairs, but not enough to justify an arrest. When
the officer arrives the second time, several hours later, she notices the
wife has new bruises, a puffy lip, and a black eye. However, the wife
still denies that her husband has beaten her. Pursuant to a statute in the
state allowing the officer to arrest a person suspected of spousal abuse
without the abused’s permission, the officer arrests the husband. What
point could the officer note in her report that would help the prosecutor
attack the credibility of the husband? Since the wife will likely make a
statement supporting her husband, what further action could the officer
take that would help the prosecutor overcome the wife’s statement?

2. A law enforcement professional’s behavior, on and off duty, can

become the subject of scrutiny in a court case as the defense counsel
attempts to attack the person’s testimony. Seemingly unrelated
personal revelations can become very damaging and embarrassing
when raised in the courtroom, for example, if a person is caught
cheating on income taxes. This information could be used by the
defense to attack the witness’s truthfulness. Think of and list five “off-
duty” activities that could be used to attack a law enforcement
professional’s credibility.

Ethical Dilemmas
1. An escaping murder suspect is shot and killed by a police officer after
the officer saw a gun in the suspect’s hand. The murder suspect’s
accomplice did not witness the shooting. The suspect had a gun in
hand, pointed at the ground, and was turning toward the officer in
response to the officer’s warning to freeze. It was at this point that the
officer shot the suspect. By testifying to this scenario, the officer could
be subject to murder charges. The officer does not believe there were
 any witnesses, the victim was a wanted felon with a gun, and, if the
officer had waited a split-second longer, there would not have been
any question about the officer’s actions. At the accomplice’s trial, the
defense counsel asks the officer if the victim threatened the officer’s
life. How should the officer answer the defense counsel’s question?

Page 177

2. A police officer responds to a loud party call about midnight. While

arguing with the officer about the officer’s decision to shut down the
party, the homeowner uses a long list of obscenities, in both English
and German. While waiting for a back-up unit, and listening to this
tongue-lashing, the officer mutters under his breath, “Shut up, you
stupid Kraut,” referring to the owner’s obvious German accent. The
homeowner hears the officer and files a lawsuit against him. Did the
officer say anything legally wrong? Ethically wrong? Can the officer’s
statement be used against him in court? How?

Endnotes
1. Fed. R. Evid. 609(a)(1).

2. Fed. R. Evid. 609(a)(2).

3. Fed. R. Evid. 609, Conference Report, H.R. Fed. Rules of Evidence,

Conf. Rep. No. 1597, 93d Cong., 2d Sess., p. 9 (1974).

4. Fed. R. Evid. 803(21).

5. Fed. R. Evid. 613(b).

6. Miranda v. Arizona, 384 U.S. 436 (1966).

7. Missouri v. Seibert, 542 U.S. 600 (2004).

8. See Harris v. New York, 401 U.S. 222 (1971).

9. See United States v. Havens, 446 U.S. 620 (1980).

 10. See James v. Illinois, 493 U.S. 307 (1990).

11. See, e.g., United States v. Abel, 469 U.S. 45 (1984).

12. Fed. R. Evid. 608(a), advisory committee’s note.

13. In Tome v. United States, 513 U.S. 150, 156–57 (1995), the Supreme
Court held that, in order for prior consistent statement to qualify for
use to rebut a charge of recent fabrication or improper influence of a
witness under Fed. R. Evid. 801(d)(1)(B), there is a premotive
temporal requirement.

14. Fed. R. Evid. 607.

15. Kastigar v. United States, 406 U.S. 441 (1972).

16. Murphy v. Waterfront Commission, 378 U.S. 52 (1964).

17. Griffin v. California, 380 U.S. 609 (1965).

18. Maryland v. King, 569 U.S. 435 (2013).

Design Element: ©Ingram Publishing

Page 178

The Hearsay Rule

Glenn Highcove/Shutterstock

Page 179

Chapter Outline

Introduction

Rationale for the Rule and Constitutional Considerations

Components of the Hearsay Rule

The Definition of a Statement

 Offered for the Truth of the Matter Asserted or Not?

Exceptions to and Exemptions from the Hearsay Rule

Statements That Are Not Hearsay Because They Are Not Offered for the
Truth of the Matter Asserted

Operative Legal Fact

State of Mind of the Hearer

State of Mind of the Declarant

State of Mind (Knowledge) of the Declarant on the “Traces of the

Mind” Theory

Statements That Are Otherwise Not Offered for the Truth of the Matter
Asserted but to Prove Something Else

Hearsay Exemptions

Prior Statements by Witnesses

Opposing Parties’ Statements (Admissions)

Specific Hearsay Exceptions

Statements Made Under Sense of Impending Death (Dying Declarations)

Foundation for the Modern Exception

Unavailability of the Declarant

Declarant’s Belief in Impending Death

Dying Declarations Must Relate to the Cause of Death

Form of the Dying Declaration

Who May Use Dying Declarations

Weight to Be Given to Dying Declarations

Declarations Against Interest

The Rationale for the Exception

Unavailability of the Declarant

Requirements for Admissibility: What Is Against Interest?

Spontaneous Utterances: Present Sense Impressions and Excited Utterances

(a.k.a. Res Gestae)

Spontaneous Utterances Defined: Present Sense Impressions and

Excited Utterances

Foundation and Rationale for the Exceptions

The Time Element

Utterance Must Relate to the Event Just Preceding It

Availability of the Declarant as a Witness

State of Mind

State of Mind Declarations Defined

Foundation and Rationale for the Exception

Inferring Declarant’s and Second Party’s Subsequent Conduct

Availability of the Declarant as a Witness

Foundation and Rationale for the Statements for Purposes of Medical

Diagnosis or Treatment Exception

Who Can Make the Statement

To Whom the Statement Can Be Made

Statements of Cause of Condition or Pain

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 Former Testimony

Foundation and Rationale for the Exception

Opportunity to Have Effective Cross-Examination

Business and Public Records

Business Records—Description and Foundation

Public Records—Description and Foundation

Law Enforcement Reports May Not Be Admissible in Criminal Cases

Proof of Absence of Business or Public Records Entry

Pedigree or Family History

Written Records

Reputation to Prove Family History

Past Recollection Recorded: Only Read into the Record

Review and Application

Chapter Objectives

This chapter examines the rule against hearsay and its many exceptions. After
reading this chapter you will be able to:

Define hearsay.

Explain the rationale for the hearsay rule.

Explain the FRE’s assertion-based definition of a statement.

List the five subcategories of statements that are not offered for the truth of
the matter asserted (NOTMA).

Name the two general categories of exemptions from the hearsay rule under
the FRE.
List the three types of prior statements by witnesses that are exempt from the
hearsay rule.

Identify the five types of admissions by a party opponent that are exempt
from the hearsay rule.

List the four foundational requirements for the dying declaration exception
to the hearsay rule.

Name the two species of spontaneous declarations exceptions to the hearsay

rule and state the difference between them.

Identify a major limitation upon the state of mind exception to the hearsay
rule.

List the foundational requirements for the statements for purposes of medical
diagnosis exception to the hearsay rule.

Name the foundational requirements for the former testimony exception to

the hearsay rule.

State the foundational requirements for the business records exception to the
hearsay rule.
Introduction
There are numerous ways to define hearsay. In simplest terms, hearsay
evidence is based on something a witness has heard someone else say, rather
than on what the witness has personally seen or otherwise perceived. In the
words of the courts, the definition most commonly used in the United States
is that of the FRE, which defines hearsay as “a statement that (1) the
declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the
statement.”1 A major portion of this chapter is devoted to explaining the
application of that definition, since analysis and understanding of the hearsay
rule are much more than the definition.

The hearsay rule grew out of the fear of convicting an accused person based
upon the untested, out-of-court statements of those not present in front of the
jury and subject to observation, oath, and cross-examination. Perhaps the
worst form of hearsay is rumor. Prior to the development of the hearsay rule,
trial by rumor was more the norm than a mere possibility. The hearsay rule
was developed by the common law to prevent the miscarriage of justice that
would result from the acceptance of extreme forms of untested, unsworn
statements by persons not present in court.

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From the outset of the development of the hearsay rule in England in the
eighteenth century, it was evident that not all hearsay evidence should be
condemned and considered inadmissible. For this reason, the hearsay rule
generally prohibits hearsay evidence, but with numerous exceptions, resulting
in the admission into evidence of many out-of-court statements.

Application Case

The trial of Sir Walter Raleigh in 16032 exemplifies the freedom, historically,
with which hearsay evidence was admitted in courts. Raleigh was on trial for
conspiring to overthrow the king of England. The prosecution relied almost
exclusively on witnesses testifying to statements made by one individual,
Lord Cobham. Raleigh objected to this evidence, demanding the production
of the witness against him. Raleigh was unsuccessful in his own defense and
was found guilty of high treason. Although he was released to conduct a
second exploratory expedition to Guiana, ultimately he was executed after the
expedition failed. As this chapter will demonstrate, the rule against hearsay
has evolved into a considerable body of law since the days of Sir Walter
Raleigh.

MYTH

FACT
Much hearsay evidence is, in fact, admissible. There are
All hearsay
numerous exemptions from and exceptions to the hearsay rule
evidence is
that permit evidence that is hearsay by definition to be used in
inadmissible.
court.

In fact, learning the hearsay rule requires at least as much understanding of

the exceptions as of the rule itself. In short, hearsay evidence by definition is
suspect, but not all hearsay evidence is inadmissible.

Through the media, even a person with the most limited knowledge of the
judicial process is aware that some forms of hearsay evidence are not
admissible in a trial proceeding. This was not always the case, however. The
rule against hearsay was not developed until the early 1700s, when courts
began to take a dim view of such evidence.

The significance of the hearsay rule to the law enforcement professional

cannot be overstated. Many statements taken from witnesses, victims,
suspects, and fellow law enforcement professionals are hearsay.

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The reports written by law enforcement professionals are also hearsay, or

contain much hearsay. A law enforcement professional’s understanding of the
hearsay rule will help the professional take statements and write reports in
such a way as to enhance the possibility that the professional’s observations
will yield investigative results that can be used effectively at trial. A law
enforcement professional who understands the hearsay rule will be more
focused when questioning people, be able to phrase questions more precisely
with respect to the requirements of the hearsay rule, and know how to figure
out if the witness’s statements fit within a hearsay exemption or exception, or
the ban of the Confrontation Clause. Given the most recent decisions by the
United States Supreme Court dealing with the Confrontation Clause and its
interrelationship with the hearsay rule, it is even more imperative that the law
enforcement professional know and understand the parameters of this subject.
Accused of plotting to overthrow the king, Sir Walter Raleigh—
soldier, explorer, writer, and businessman—was convicted in 1603
on the written evidence of Henry Brooke, Lord Cobham.

Bettmann/Getty Images
Rationale for the Rule and
Constitutional Considerations
Because hearsay is a statement made by a person out-of-court, questions of
truthfulness are always present. A key principle underpinning the hearsay
rule is the preference that the declarant (the person who makes a
statement3) be present in court, under oath, and subject to cross-
examination. If the declarant cannot be present in court but certain
requirements are met, the hearsay rule may allow admission of the out-of-
court statement into evidence.

The rule’s preference for the presence of the declarant seeks to ensure that
the fact-finder (the trial judge or jury) is in a position to evaluate the
declarant’s ability to perceive initially, remember accurately, and narrate
correctly. In short, the fact-finder is then able to evaluate personally the
declarant’s sincerity. When the declarant is a witness in court and subject to
cross-examination, the judge and jury are able to observe demeanor and are
therefore in a better position to decide what weight to give to the testimony.
All of these safeguards are lost when the declarant is not present in court
and hearsay evidence is admitted. In addition to the problems of
truthfulness inherent in hearsay, constitutional problems arise.

The Confrontation Clause of the Sixth Amendment to the Constitution of

the United States guarantees the defendant in a criminal case the right “to
be confronted with the witnesses against him.” This guarantee requires that
any evidence in the form of a statement by a person be made by that person
under oath, subject to cross-examination by the defendant. If the
Confrontation Clause were applied literally, no hearsay evidence could ever
be admitted at trial in a criminal case.

The Supreme Court of the United States has had occasion to consider the
constitutionality of hearsay exceptions in connection with a defendant’s
right of confrontation and, until March 2004, found most of the exceptions
to be constitutional. Up to that time, the Court found that, if hearsay
evidence was within a “firmly rooted” exception to the hearsay rule, then
the evidence was likely reliable enough to be admitted in criminal cases
without violating the Confrontation Clause. In March 2004, the Court
decided the case of Crawford v. Washington,4 in which the Court redefined
the Confrontation Clause, rejecting the “firmly rooted” analysis adopted in
prior cases. Instead, the Court held that the Confrontation Clause bans use
at trial of uncross-examined statements of absent declarants when the
statements are “testimonial.” Although the Court left “for another day”5 a
comprehensive definition of “testimonial,” the Court stated that the
Confrontation Clause clearly bans statements made

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in the form of testimony given at a formal proceeding (including trial,

preliminary hearing, grand jury, and plea allocution) and

to police or other government personnel during interrogation.

The Court also used language, however, to indicate that the ban of the
Clause might apply to any statement “made under circumstances which
would lead an objective witness reasonably to believe that the statement
would be available for use at a later trial,”6 which could include the
following:

all manner of statements such as police reports, forensic reports, and

witness interview notes;

public records created under such circumstances; and

excited utterances made to law enforcement or other officers.

Two years after Crawford, the Court again addressed the definition of
“testimonial” for Confrontation Clause purposes, this time focused on
statements made in 911 calls and to police officers at the scene of a crime.
In Davis v. Washington,7 the Court addressed the issues in the context of
domestic abuse cases (Davis was consolidated with the case of Hammon v.
Indiana). In resolving the issues, the Court concluded, “Statements are
nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency.
They are testimonial when the circumstances objectively indicate that there
is no such ongoing emergency, and that the primary purpose of the
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.”8

Davis left open the question of how broadly the Court would treat the
“ongoing emergency” doctrine and how it would go about trying to
determine what the primary purpose of an interrogation was. The Court
began to give answers in Michigan v. Bryant.9 The case centered on
statements made by a shooting victim, while lying badly wounded on the
pavement outside a gas station. The victim told several police officers who
arrived on the scene that he had been shot by the defendant a half hour
earlier and six blocks away. Several hours later, the victim died of his
wounds. There was no proof, however, that at the time of his statements he
anticipated imminent death, so his statement could not qualify as a dying
declaration. During trial, the testimony of the officers regarding the victim’s
statements were challenged. The Supreme Court held that the statements
were not testimonial and that they were properly admitted at trial. Rather,
the statements were made for the purpose of addressing the emergency
created by the shooting. The Court used the “Primary Purpose” test
adopting “[a] combined inquiry that accounts for both the declarant and the
interrogator” in determining from whose perspective a court should make
the assessment of purpose. The majority concentrated its discussion mainly
on the police officers, for as they arrived at the scene they knew little or
nothing of what was going on.10

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The Court again addressed the Primary Purpose test in 2015 in Ohio v.
Clark.11 There, the Court held that the Confrontation Clause did not
prohibit prosecutors from introducing statements made by a child abuse
victim to his teachers, where neither the child, who was unavailable for
cross-examination, nor his teachers had the primary purpose of creating an
out-of-court substitute for trial testimony. The child was three years old at
the time he made the statements.
In both Crawford and Davis, the Court noted two exceptions to the
testimonial rule: dying declarations and “forfeiture by wrongdoing.” The
Court did not expand on those exceptions in either case. Then, two years
after Davis, in Giles v. California,12 the Court clarified the forfeiture by
wrongdoing exception to the Confrontation Clause, holding that an accused
can only be found to have forfeited his or her right to confront if the
accused is found to have purposely caused the absence of the declarant at
trial.

A more comprehensive analysis of the impact of the Crawford, Davis, and

Giles decisions on the law enforcement professional’s approach to
investigation and gathering of witnesses’ statements appears later in this
chapter. For now, let it be said that statements taken from victims and
witnesses may not be expected to be used at trial if the victim or witness is
unavailable for cross-examination and has not previously been cross-
examined by the defendant, unless the statements were made to assist police
to meet an ongoing emergency, the statements qualify as dying declarations,
or the defendant intentionally caused the victim or witness to be absent
from trial to prevent him or her from testifying against the accused.
Components of the Hearsay Rule
The Definition of a Statement
Only evidence that is in the form of a statement not presently made in court can
be hearsay. If the evidence is in any other form, such as a witness’s present
testimony in court or a tangible object, such as a gun, then there is no application
of the hearsay rule to the evidence. Also, since words uttered or written and
conduct exhibited by a person may or may not involve issues of truthfulness, not
all utterances, writings, and conduct are within the concern of the hearsay rule.
The definition of a statement, in the first instance, is one way that the law
distinguishes between hearsay and nonhearsay.

FRE’s Assertion-Based Test

The FRE definition focuses on what is known as an “assertion-based” test. Under

this test, evidence is a statement, and therefore may be hearsay, only if the
declarant intended the utterance, writing, or conduct to assert something.13 For
example, assume a defendant in a criminal murder trial claimed another man
committed the murder and offered evidence that the other man was so distraught
over his crime that he committed suicide. The act of suicide, on its face, was not
intended by him as an assertion of anything—he was just trying to end his misery.
However, his act implicitly revealed his belief that he was guilty of murder
(among other possibilities). Therefore, the evidence would be relevant to his guilt
and would not be hearsay because the conduct was not a statement. On the other
hand, if the person who committed suicide was heard to cry out, “I just cannot
live with the shame of murdering a person,” just before he killed himself, that
statement would be an assertion by the person related to the crime and would be
hearsay.

Page 185

MYTH

FACT
 MYTH

FACT
In order for an utterance to be a statement for purposes of the hearsay
Anything
rule, it must be intended by the person speaking to be an assertion.
uttered by
Ordinarily, questions and directions are not assertions, although some
a person
questions and directions may be shown, in context, to be intended as
out-of-
assertions. An example is a statement in question form, such as “You
court is a
don’t think I know that?” Likewise, conduct that implies a belief, but
hearsay
was not intended by the actor to assert the belief, is not a statement for
statement.
purposes of the hearsay rule in most jurisdictions.

The Common Law’s Declarant-Based Test

Some states do not follow the FRE’s assertion-based approach to the definition of
a statement and use a “declarant-based” test instead. Under this test, in the
previous example, committing suicide would be considered under the hearsay
rule even in the absence of a specific statement by the person. This is because the
evidence involves evaluation of the person’s belief in order to be relevant to the
issue of guilt. Under this approach, since the jury would have to rely upon the
credibility of the actor, the conduct qualifies for consideration under the hearsay
rule. Under a declarant-based definition of hearsay, an out-of-court statement (or
conduct) is hearsay when it depends upon the credibility of the declarant (his or
her truthfulness) for its value, regardless of the assertive intent of the declarant or
actor.14

The operative language of the FRE definition is that the declarant intends to
assert something by words or conduct. Usually, when words are uttered, there is
no doubt that an assertion was intended. However, if the declarant gives a
direction or asks a question, both of which are nondeclarative forms of utterances,
there is no assertion and, technically under the FRE, the evidence of such
utterances would not involve the hearsay rule.

In contrast to the suicide example, it is an assertion when a victim points at a

suspect in a lineup as a substitute for saying the words “That’s him!” The sole
purpose of the victim’s conduct is to assert a belief as to the identity of the
perpetrator. Once it is determined that a statement was made out-of-court, further
inquiry into the statement’s relevance is required before it is possible to decide if
the statement is, in fact, hearsay.

Page 186

Offered for the Truth of the Matter Asserted or Not?

The next phase of analysis under the definition of hearsay is whether a statement
is offered by the proponent of the evidence to prove the truth of the matter
asserted. If the statement can help to prove a fact in the case only if it is true, then
the statement is hearsay. Conversely, a statement may not have to be true but may
have some value in determining what happened in a case. It is important to
remember that the definition of a statement is not limited to spoken words or
conduct—a statement may also be information written or typed by the declarant,
such as information in letters, notes, or other documents.

To illustrate the problems involved in determining whether evidence of a

statement needs to be true to be probative and is therefore hearsay, consider the
following scenario. Assume that a defendant has been charged with bank robbery,
and a witness takes the stand and testifies that a neighbor told the witness that the
defendant robbed a bank. In this case, the witness has no personal knowledge
about the acts of the defendant; he or she knows only what the neighbor said.
Because the witness has knowledge only of what the neighbor said, the neighbor,
as the declarant, must have personal knowledge of the defendant’s acts. The out-
of-court declarant’s statement that the defendant robbed the bank is, by itself,
insufficient to show any personal knowledge on his or her part. In other words,
the testimony by the witness on the stand that the defendant robbed a bank is
inadmissible hearsay.

Even though the witness is telling the truth about what the neighbor said, the
accuracy of the facts is dependent upon the neighbor, who is not in court. It is
possible that the information given by the neighbor is true, but it may not be. It is
conceivable that the neighbor may have obtained the information from another
person and just repeated it, so that the truthfulness of the statement is now
dependent upon a third individual. Up to this point, the identity of the neighbor
has not even been considered, and, in reality, it doesn’t matter. The neighbor, if
called to testify, may not even be a qualified witness. He or she may be a child of
tender years or a senile person without the ability to perceive the situation
correctly, or the person may have a reputation for not telling the truth (which
would not disqualify the person as a witness but would surely detract from the
witness’s credibility). Another danger in admitting hearsay evidence is that the
witness may not accurately relate what was heard. Since the original declarant is
not present to correct any inaccuracies, the hearsay, if admitted, might be given
more credit than it deserves. Thus, it can readily be seen that hearsay can be
dangerous and may give little assistance to the jury in its search for the truth. The
rule excluding hearsay was developed because the usual safeguards for
trustworthiness are lacking in hearsay evidence.

Exceptions to and Exemptions from the Hearsay Rule

Numerous exceptions and exemptions that have been established over the years
recognize some recurring situations. These exceptions and exemptions are the
result of custom, tradition, or necessity. Many hearsay exceptions and exemptions
apply in situations in which the statements have a reasonably high level of
trustworthiness. For example, excited utterances, those statements that are blurted
out in the heat of excitement, are particularly trustworthy. The declarant, having
no time to think about anything, is likely to have been truthful in the assertion.
Custom dictates that a dying person’s statement about the cause of his or her
death is acceptable evidence. The dying declaration is also an example of
necessity, since the declarant, having died, is not available to testify in court.

Page 187

MYTH FACT
In order for
There are numerous exceptions to the hearsay rule, both under
hearsay to be
the common law rule and the FRE, that allow hearsay
admissible
statements into evidence, regardless of whether the declarant is
within an
shown to be unavailable. If a witness’s statement is admissible
exception to the
at trial, even when the declarant is not shown to be unavailable,
hearsay rule, the
then the law enforcement officer need not keep track of that
declarant must
witness’s whereabouts in order for the statement to be usable at
be shown to be
a trial or hearing.
unavailable.

Statements that are within an exception to the hearsay rule are hearsay but are
admissible nonetheless. Statements that are within an exemption from the hearsay
rule are not even considered to be hearsay at all. Examples of statements
exempted from the hearsay rule are certain prior consistent and inconsistent
statements by witnesses, and opposing parties’ statements (admissions).

Although the FRE and common law include a large number of exceptions to and
exemptions from the hearsay rule, only those frequently encountered in criminal
matters will be considered in this book for more detailed discussion. FRE 803,
804, and 807 contain the exceptions to the hearsay rule, and 801(d) contains the
exemptions from the rule. For purposes of the law enforcement professional, the
exceptions and exemptions to be discussed are

1. dying declarations,

2. spontaneous declarations,

3. state of mind,

4. statements for purposes of medical diagnosis or treatment,

5. former testimony,

6. business records,

7. pedigree,

8. past memory recorded,

9. prior statements of witnesses,

10. opposing parties’ statements (admissions) and confessions, and

11. declarations against interest.

There is no particular significance in the order in which these exceptions or

exemptions will be discussed. With respect to opposing parties’ statements
(admissions) and confessions, however, this chapter deals only with the hearsay
rule, while Chapter 8 will explain opposing parties’ statements (admissions) and
confessions from the standpoint of constitutional issues. Figure 7–1 depicts the
decisions to be made when determining if an item of evidence is hearsay or not.

Page 188
FIGURE 7–1 How to determine what is hearsay.
Statements That Are Not Hearsay
Because They Are Not Offered for
the Truth of the Matter Asserted
As noted earlier, when dealing with the hearsay rule, the first question to
consider is whether the evidence in dispute is a statement. If the evidence is
a statement, and if the statement was made out-of-court, then the next
matter for consideration is whether the statement is being offered in
evidence by the proponent of the evidence to prove the truth of the matter
the declarant intended to assert in the statement. This inquiry focuses on the
statement and examines whether the statement needs to be true in order to
prove the fact for which the statement is offered in evidence. There are two
ways a statement may tend to prove something:

1. just the fact that the statement was made or was heard by a particular
person, regardless of its truth or falsity, may tend to establish a fact in
the case; or

2. the content of the statement may have to be true in order to prove a

fact.

If the content of a statement must be true to prove a fact, then the statement
is hearsay and needs to fall within an exemption from or exception to the
hearsay rule in order to be admissible. However, if the statement proves a
fact just because the statement was made, regardless of whether it is true or
not, the statement is not hearsay and is therefore admissible insofar as the
hearsay rule is concerned. For example, a robber’s statement “If you don’t
give me your money, I’ll shoot you” is evidence of the threat of violence
just because the statement was uttered.

Page 189
The following categories of statements do not fall within the definition of
hearsay because they are not offered for the truth of the matter asserted
(NOTMA).

1. Operative legal fact

2. State of mind of the hearer

3. State of mind of the declarant

4. State of mind (knowledge) of the declarant on the “traces of the mind”

theory

5. Statements that are otherwise not offered for the truth of the matter
asserted (NOTMA) but to prove something else

Following is a more comprehensive explanation of each category.

Operative Legal Fact

The utterance of an operative legal fact creates or destroys a legal
relationship, right, power, or duty. The following is an example of an
operative legal fact. Person A says to Person B, “I will pay you $5,000 if
you will kill V.” Person A’s statement is significant merely because it was
uttered. The statement is the solicitation of Person B to do an illegal act and
is itself an element of the crime of solicitation. The statement need not be
true to qualify as a solicitation. Other examples of statements that are
operative legal facts in a criminal law context include the threat as an
element of robbery (mentioned earlier) or extortion, solicitation of a bribe,
solicitation for prostitution, and solicitation to buy narcotics or stolen
goods.

Page 190

State of Mind of the Hearer

In many instances, what a person thinks at a particular moment in time is
extremely relevant and important to a case. We cannot see inside a person’s
head to determine what he or she is thinking. One way to tell what a person
is thinking is by what he or she says. Another way is by what he or she
does. Yet another way to determine what is in a person’s mind is to know
what he or she has seen and heard. Thus, if we know that someone told a
person about something, then we can say that the hearer, or auditor,
“knows” about that fact. The state of mind of the hearer principle includes
statements made by a person that create or affect the state of mind of
another who hears those statements. For example, in a murder case, the
defendant, prior to the killing, heard another man say that the victim was a
violent man who always carried a knife. If the defendant is claiming self-
defense, these statements are relevant to show that, at the time of the
killing, the defendant was in a state of mind of fear of the victim. Moreover,
under the definition of self-defense, the defendant must have only a
reasonable belief in the truth of the threat or justifying circumstance in
order for self-defense to be validly claimed. Therefore, the statements heard
by the defendant in such a case as hypothesized do not have to be true. It is
necessary only that the defendant thought they were true. Thus, if such
statements are made in the presence of the accused and are heard and
believed, those statements are relevant and admissible and are not hearsay.
It would be up to the jury to decide whether the defendant heard and
believed such statements.

MYTH

FACT
A statement Not all such statements are hearsay. Only those statements
made out-of- that must be true in order to prove the fact for which the
court offered statement is offered in evidence are hearsay. If the statement
as evidence tends to prove a fact in the case without the content of the
in court is statement having to be true, then, by definition, it is not
always hearsay and is admissible insofar as the hearsay rule is
hearsay. concerned.

ON THE JOB
Many crimes require a “guilty mind,” or mens rea, to be complete. For
example, burglary requires an intent to commit a crime in a dwelling or
structure before or at the time the perpetrator enters. One way to prove
mens rea is by evidence of statements made by the suspect showing his or
her state of mind at the time he or she committed the crime. A suspect’s
statement to a friend an hour before the burglary that “I plan to steal all the
silver in the house” will make the offense burglary because the requisite
mens rea is shown. However, the statement to the same friend that “I’m
going to enter the house only to get out of the rain and cold” shows a lack
of mens rea for burglary because the suspect’s state of mind or decision to
steal the silver did not occur until after the entry was made. If the suspect
entered the house to get warm and then decided to steal the silver, the
suspect would be guilty only of theft and not of burglary. When
interviewing a suspect or witness, the officer should pay close attention to
the exact words used by the person and record any pertinent statements as
they are made. Many cases are decided upon the exact wording of a
statement.

State of Mind of the Declarant

In state of mind of the declarant, a statement is offered to show the state of
mind of the person who uttered the statement, not of the person who heard
the statement. The statement cannot be offered as truth but may be offered
so that the fact-finder can infer the declarant’s state of mind at the time the
statement was made. For example, if a young man claims, “I am Henry the
Eighth,” such a statement may be offered to prove that the young man is
suffering from a delusion. Obviously, the statement is not true (the declarant
cannot be Henry the Eighth), but the inference from the statement lends
insight into the declarant’s state of mind. As another example, assume the
defendant in a murder case said something negative about the victim’s
character, such as “Harry [the victim] is the most horrible person in the
world.” Such a statement would be relevant not to prove that Harry was the
most horrible person in the world but to prove that the defendant, who is
also the declarant, had ill will toward Harry and, for that reason, had a
motive to kill him.

Page 191
State of Mind (Knowledge) of the Declarant on the
“Traces of the Mind” Theory
The “traces of the mind” theory allows into evidence statements that prove
the person making the statement has knowledge that he or she could have
gained only by actually having perceived some unusual event,
circumstances, or surroundings. A statement may be relevant to prove that a
person has been to a particular place because he or she has a distinct
knowledge of what the place looks like. For example, assume a young girl
has been kidnapped and locked up in a room. The child is then released and
describes the contents of the room to an investigating officer. The
description of the room can be offered to prove that she had indeed been in
that room because she could not have such knowledge of the room’s
contents unless she had actually seen them. It is important to note that the
details of the place must be proven by evidence other than that contained in
the child’s statement. Photographs of the room and its contents would
satisfy this requirement in this case.

Application Case

An example of a statement by a person admissible under the “traces of the

mind” theory occurred in a much publicized case involving the late pop
superstar Michael Jackson. A young boy claimed to have been molested by
Jackson and described a unique mark on Jackson’s genitalia. The criminal
case never developed into a prosecution, and the potential civil case was
settled on undisclosed terms. During the investigation, however, Jackson
was searched, and his body was inspected and photographed. In the event of
a criminal trial, the boy’s statement describing the unique mark could have
been admitted under the “traces” theory, and the photograph could have
been admitted to display the mark for comparative purposes.

Statements That Are Otherwise Not Offered for

the Truth of the Matter Asserted but to Prove
Something Else
Anytime a statement is offered for a reason other than to prove the truth of
the matter asserted in the statement, it is, by definition, nonhearsay and
admissible if relevant. For example, sometimes the mere fact that a person
spoke is relevant, even though the content of the statement is not. Suppose
there is a dispute over whether a murder victim survived for a few minutes
before dying. If someone overheard the victim utter a statement, that
statement is relevant to prove that the person was alive. This stems from the
fact that dead people cannot talk. The content of the statement is not
important. The victim might have said, “I’m alive.”15 Even so, the mere fact
any statement was uttered shows that the person was still alive, and what
the person actually said is unimportant.

It must be remembered that all of the subcategories discussed in this section

are particular instances of statements not offered for the truth of the matter
asserted (NOTMA). These are not rigid categories, but they have been
grouped together because of the frequency of their occurrence. When
determining if a statement qualifies as hearsay, consider if the statement
needs to be true to be relevant. If the answer is no, then the statement is
nonhearsay and is therefore admissible.
Page 192

Hearsay Exemptions
If a statement is logically relevant only if the content of it is true, then it is offered
for the truth of the matter asserted, is hearsay, and is only admissible if it falls
within an exemption or exception. In a sense, any utterance that is not a statement
and any statement that is NOTMA are exempt from the hearsay rule by definition.
However, there is another set of hearsay exemptions under FRE 801(d). They fall
into two categories:

1. certain kinds of prior statements of a witness and

2. opposing parties’ statements (admissions).

Figure 7–2 depicts the two categories of exemptions from the hearsay rule. After
determining that the evidence is in the form of a statement, and that it is offered
to prove the truth of the content of the statement, it must then be determined
whether the statement is within one of the exemptions.
 FIGURE 7–2 Two categories of exemptions from the hearsay rule.

Prior Statements by Witnesses

In order for a prior statement by a witness to be admissible, the person must be
available to testify in court and be subject to cross-examination. It may seem that,
since the witness is available to testify, his or her statements offered for the truth
of the matter asserted are not hearsay. But it is important to remember that any
out-of-court statement offered for the truth of the matter asserted is hearsay even
if the person who made the statement is available to testify. There are three types
of prior statements by witnesses as follows:

1. prior inconsistent statements,

2. prior consistent statements, and

3. statements of prior identification.

Page 193

A prior inconsistent statement is a statement by the witness that contradicts the

witness’s current in-court testimony. For example, a witness to a robbery testifies
in court that the getaway car was a green, two-door Chevrolet Camaro. The same
witness had previously testified at the preliminary hearing that the getaway car
was a red, four-door Ford Taurus. The preliminary hearing statement is a prior
inconsistent statement that is now admissible during the cross-examination of the
witness. However, according to the FRE and in most jurisdictions, in order for the
prior statement to qualify as an exemption under this heading, the prior statement
must have been made under oath and must have been subject to the penalty of
perjury at a trial, at a hearing, at another proceeding, or in a deposition.
Inconsistent statements not under oath are not admissible under this exemption.

Prior consistent statements do not have to be under oath and thus may be out-of-
court statements. A prior consistent statement is a statement made previously that
is consistent with the present testimony of the witness. Under the FRE, it is
admissible only “to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so testifying.”
For example, suppose a child claimed that she had been abused by one of her
parents. Subsequently, the parents decide to get divorced, and both parents want
custody of the child. At the child abuse hearing, the child is called to testify about
the alleged abuse. In defense, each parent claims that the child is fabricating the
story of abuse to remain with the other parent after the divorce. On re-direct
examination of the child, the prosecution will seek to offer a prior consistent
statement that the child gave to a police detective at the time of the alleged abuse.
This statement was given before the parents decided to get divorced and therefore
could not be tainted by any motive to stay with a particular parent.

Statements of prior identification are simply out-of-court statements identifying a

person made after the declarant has seen that person. In criminal cases, there are
several types of out-of-court identifications, including in-person lineups, photo
lineups, and show-ups (the accused is presented to the witness alone because the
circumstances require swift action). All statements made in connection with such
identifications are admissible within this exemption. This allows the fact-finder to
have all the information needed to assess any eyewitness identifications presented
at a criminal trial.

MYTH

FACT
Any
An out-of-court statement made by a witness and offered to prove
statement
the truth of the matter asserted in the witness’s statement is, by
made out-
definition, hearsay. Only those prior witnesses’ statements that are
of-court by
within the specified exemptions are admissible. These statements
a witness
include prior consistent statements (but only when offered to rebut a
who is
charge of recent fabrication), prior inconsistent statements (but only
testifying
if made under oath at a prior proceeding), and statements of prior
in court is
identification of a person.
admissible.

Page 194

Opposing Parties’ Statements (Admissions)

An opposing party’s statement (admission) is a statement that is attributed to a
named party in a civil lawsuit or a statement attributed to a criminal defendant.
Following are five types of opposing parties’ statements, the last three of which
are vicarious statements (statements made on behalf of another person):

1. the party’s own statement,

2. the party’s statement by adoption,

3. a statement by a person authorized by a party to speak,

4. a statement by an agent or employee of a party, and

5. a statement by a co-conspirator of a party.

Any statement by a party qualifies as an opposing party’s statement if it was made

by the party, whether the statement was against the interest of the person when
made or not. All that is required is that the statement was made and that it is
offered in evidence against the party. Opposing parties’ statements are not
required to have been made under oath or under any particular circumstances.
Under certain circumstances, a statement of admission of guilt by an accused in a
criminal case is also called a confession. A more comprehensive discussion of
confessions and admissions of criminal defendants follows in Chapter 8.

An adoptive opposing party’s statement (admission) occurs when the party,

though not making the statement himself or herself, adopts a statement made by
another, usually by silence in the face of an accusation. For example, as two men
are walking toward each other on the street, one points to the other and says,
“That’s the man who killed my brother.” If the other man hears the statement but
does not respond with a denial, then such a lack of response will constitute an
adoption of the statement as truth. An adoptive opposing party’s statement will be
found when, under the circumstances, a reasonable person would be expected to
respond and deny the accusation.

MYTH FACT
 MYTH FACT
In order for an
admission to Any statement made by a party to a lawsuit is admissible as
qualify as an admission if it is offered by the opposing party, whether
evidence, it must the statement was against the interest of the declarant at the
be against the best time it was made or not. Thus, a statement made by an
interests of the accused at the time of arrest that is later offered at trial
party who made it against him or her is admissible as an admission, whether or
at the time it was not the statement was incriminating at the time it was made.
made.

Page 195

A vicarious opposing party’s statement (admission) is a statement not actually

made by the party but by an individual acting on behalf of the party. Such an
individual may be acting as a person expressly authorized to speak on behalf of
the party, an agent or an employee, or a co-conspirator. If the statement was made
by someone authorized to speak for the party opponent, then the statement must
concern the subject matter about which the person was authorized to speak. If the
statement was made by an employee, the statement must concern a matter within
the scope of employment and must be made during the time of employment.

A co-conspirator’s statement is one made by a co-conspirator during the course of

the conspiracy and in furtherance of the conspiracy. Not all co-conspirators’
statements are admissible. If a co-conspirator makes a statement after the
conspiracy has ended, usually after the arrest, such statements are not admissible
within the co-conspirator’s statements exemption.
Specific Hearsay Exceptions
In addition to the exemptions from the hearsay rule discussed earlier, there
are other specific exceptions to the hearsay rule. Many of the exemptions
were treated as exceptions under the common law rule. They have been
treated separately in this discussion because they are treated separately in
the FRE. However, in those states that have not adopted the FRE, the
exemptions will be called exceptions.
Statements Made Under Sense of
Impending Death (Dying
Declarations)
The dying declaration exception to the hearsay rule is the most restricted of
all in terms of foundation for admissibility. For a dying declaration to be
admissible, there must be an initial showing of unavailability of the
declarant. Then, according to the exception under the FRE, Rule 804(b)(2),
“in a prosecution for homicide or in a civil case, a statement that the
declarant, while believing the declarant’s death to be imminent, made about
its cause or circumstances” constitutes a dying declaration. The usual
justifications underlie the dying declaration exception, namely, necessity
and reliability. Originally, the declarant of a dying declaration had to die for
the statement to be admissible. Although no longer a requirement, in most
situations today, the declarant of a dying declaration is deceased, thus
allowing the admission of a statement of an absent declarant. Reliability
under the old common law tradition was predicated on the assumption that
no one would be willing to lie when about to meet his or her Maker. Today,
this assumption is more questionable. The necessity of presenting all the
facts to the jury, however, is still a forceful justification for this exception.

Under the common law rule, a dying declaration could only be used in
prosecutions for homicide. In most cases, the killer and the victim were the
only ones present at the time that the assault took place and were therefore
the only ones who knew what happened. It was thought that if, after the
assault, the victim should live long enough to make some declaration
concerning the cause of his or her injuries, the declaration should be
introduced in evidence at the trial against the accused killer. Otherwise, the
killer might go free to prey upon others, and justice would not be done.

Page 196
Foundation for the Modern Exception
There are four foundational requirements for a dying declaration as follows:

1. the declarant must be unavailable,

2. the trial must be either a prosecution for homicide or any civil action,

3. the statement must be made while the declarant believes that death is
imminent, and

4. the statement must concern the cause or circumstances of what the

declarant believed to be impending death.

Unavailability of the Declarant

FRE 804(a) specifies five ways in which a declarant may be found
unavailable for all the exceptions to the hearsay rule that require a finding
of unavailability. A declarant is unavailable as a witness if he or she

1. is exempted by privilege;

2. persists in refusing to testify even when ordered by a court to do so;

3. testifies to a lack of memory;

4. is unable to be present because of death, illness, or infirmity; or

5. is absent because the person offering the evidence has been unable to
secure the declarant’s attendance by process or other reasonable
means.

Declarant’s Belief in Impending Death

The judge must decide the admissibility of any statement claimed to be a
dying declaration. The major issue presented to a judge in determining
admissibility pursuant to FRE 104(a) is the third foundational requirement:
the state of mind of the declarant at the time the statements were made.
Only if the judge is satisfied by a preponderance of the evidence that the
declarant was under a belief of impending death will the statements be
admitted. In other words, the judge considers whether there were sufficient
circumstances, known to the declarant, that caused the declarant to be under
the belief that death was imminent. The declarant is not required to say, “I
know that I am going to die.” Indeed, the declarant’s belief in impending
death may be created by another person’s utterance. For example, a friend’s
statement to the declarant, “Oh, man, a truck can drive through that hole in
your chest,” can create a belief in the imminence of death. Other examples
showing the declarant’s belief that death is inevitable might be his or her
request for the final rites of the church, an expression of concern that the
family be properly cared for, and an expression of a desire to see some
family member one last time.

MYTH FACT
Any statement
Only the statements of victims of homicides or
made by a dying
attempted homicides are admissible as dying
person is
declarations. The statements must be made while the
admissible in
victim believes he or she is dying and must concern the
evidence as a
person or persons responsible for the victim’s death.
dying declaration.

Page 197

The declarant’s belief in impending death is essential to the admissibility of

these statements. It may be perfectly obvious to all present that the
declarant has no chance of survival. The declarant may have even been told
by a doctor that death is near, but, unless the declarant is convinced that he
or she is about to die, the test of trustworthiness is not met. It is the
solemnity of impending death that leads the declarant to speak the truth.

It is not necessary that the declarant die immediately after making the
declarations for them to be introduced in evidence. In fact, the declarant
need not even die, although many cases involve the homicide or death of
the declarant. As long as the statement was made under the belief of
imminent death and concerns the cause or circumstance of what the
declarant believed to be imminent death, it will be admissible. Moreover,
there is no prescribed time period following the assault in which the
declaration must be made. Admissibility hinges on the frame of mind of the
declarant at the time the declarations were made. Admissibility is, therefore,
not defeated if, after making a declaration under a belief in impending
death, the condition of the declarant improves. As long as the declarations
were made at a time the declarant believed that death was imminent, the test
of trustworthiness is met.

Dying Declarations Must Relate to the Cause of

Death
For a dying declaration to be admissible, the subject matter of the
declaration must be confined to facts about the injuries that created the
belief of impending death. More specifically, the declaration must relate to
the cause or circumstances of what the declarant believes is his or her
imminent death. The statements may include things that took place just
prior to the injurious event, as well as those that happened closely enough
thereafter to be considered an integral part of the event. Dying declarations
may include not only the facts of how the injuries were received or inflicted
but also information that identifies the assailant, as this may pertain to the
cause of death. The declarant does not have to identify the assailant by
name, but any descriptive data that assist in the assailant’s identification
may be admitted.

For example, a victim of a fatal stabbing made a final statement to police at

the scene of the crime that, while walking in the park, she was grabbed by a
man with a beard and long hair who was wearing a red shirt and, when she
screamed, he stabbed her. This statement pertains to the cause or
circumstances of the woman’s death and is therefore admissible, provided it
was made under the belief of imminent death. Where she was at the time
that injury was inflicted, the act of grabbing, and the scream followed by
the stabbing are all facts pertaining to the injury from which she likely
believed she would die. The description of the assailant is a part of the
event and pertains to identification.

Page 198

Form of the Dying Declaration

There is no prescribed form that a dying declaration must follow to be
admissible. An oral or written statement, a sign, a nod of the head—all are
acceptable. A dying declaration can be in the form of a very simple
statement, such as “John shot me.” The declaration may be the spoken
answer to a question asked of the victim, or it may be merely a nod of the
head when the victim is asked whether he or she knows who caused the
injury. In this example, if the next question were one that identified the
assailant—such as “Was it John?”—a simple nod by the victim would again
be sufficient. Also, the victim might be asked to point to the person who
assaulted him or her. Such an action by the victim is also considered a valid
form of dying declaration. When a declaration is an act and not an actual
statement made by the victim, it may become necessary to prove that the
victim’s mental condition was not perceptibly affected or impaired by his or
her injuries. Most important, once it has been established that the declarant
has a sense of impending death, utterances made concerning injuries are
admissible whether the statements are volunteered by the victim or in
response to questions.

A witness who testifies at trial that the victim believed that death was
imminent is often the witness who repeats the content of the victim’s dying
declaration. However, this need not be the case. One witness might present
facts to prove that the declarant was under the sense of impending death,
while another witness presents the dying declaration itself.

Who May Use Dying Declarations

From a practical standpoint, dying declarations are almost always
introduced by the prosecution to aid in the proof of guilt. However, there is
no restriction that prohibits the defendant in a homicide case from
introducing dying declarations in his or her defense. Likewise, in civil
cases, dying declarations may be introduced by either the plaintiff or the
defendant. In those states that continue to restrict the admissibility of dying
declarations to homicide prosecutions, it is difficult to envision a situation
in which the defendant would be able to utilize a dying declaration. In such
a state, the only realistic scenario would be if the defendant could produce a
witness who had heard the deceased declarant state that the fatal injury had
been inflicted by someone other than the defendant.

Weight to Be Given to Dying Declarations

It is primarily the responsibility of the trial judge to determine whether the
utterances of a declarant meet the test of trustworthiness—whether the
declarant was truly under the impression that death was near. Under FRE
104(a), the judge must determine, as a preliminary question of fact, whether
the declarant had the requisite state of mind. The judge may consider
inadmissible evidence in resolving this issue and, until the judge determines
by a preponderance of the evidence that the declarant was under the belief
of impending death, the dying declaration is inadmissible.

Once the dying declaration has been admitted in evidence, the jury decides
the weight to be given to it. A jury may give great weight to a declaration
because of the solemn circumstances under which it was given. Or the jury
may become emotionally involved in the pathos of the situation, believing
that in these circumstances, no one would utter anything but the truth. On
the other hand, the jury may believe that, when the utterances were made,
the declarant was in a state of shock. The victim may have been in extreme
pain, and his or her thoughts and memories were confused. It is also
possible that the jury will find that the declarant was seeking revenge,
taking advantage of his or her last moments on earth to accuse an enemy. In
sum, it is up to the jury to decide whether the declarant was sincere and
speaking of things within his or her personal knowledge.

Page 199

Thus, even though the judge permits the declarations to be introduced as

dying declarations, the jury may also measure the statements’
trustworthiness and weigh the statements accordingly. If the jury were to
conclude that the declarations were made when the declarant was not under
a belief that death was impending, the jury could give the dying declaration
little or no weight.
Declarations Against Interest
Sometimes confused with an opposing party’s statement (admission) is a
declaration against interest. Unlike an opposing party’s statement, a
declaration against interest is a statement made by a person who is not a
party to the case and who is unavailable as a witness. Furthermore, the
person’s statement, to qualify as a declaration against interest, must have
been contrary to the person’s interests at the time it was made. If the
statement were one made by a party to the case, for instance, an accused in
a criminal case, then the statement would be admissible as an opposing
party’s statement and would never even be considered as a declaration
against interest.

There are two basic requirements for this exception:

1. the declarant must be unavailable as a witness and

2. the statement must have been against the financial or penal interest of
the declarant at the time it was made.

The Rationale for the Exception

The declaration against interest exception exists in recognition of the
principle that a person would not say something that would expose him or
her to loss of property or liberty unless the statement was likely true. Thus,
such potentially damaging statements are viewed as reliable. But the law
does not view declarations against interest as being so reliable that they are
admissible in all situations.

However, because of the increased likelihood of reliability of such a

statement, if the speaker is not available as a witness, the law does allow the
statement to be admissible as evidence in many instances.

Unavailability of the Declarant

Just as with the dying declarations exception, unavailability for declarations
against interest is defined in FRE 804(a). The same five reasons for
unavailability may be shown for a declaration against interest as for a dying
declaration. If the declarant is not shown to be unavailable for one of those
reasons, the statement will not be admissible.

Requirements for Admissibility: What Is Against

Interest?
Any statement that exposes a potential financial loss is a declaration against
interest that is admissible under this exception. For example, a statement by
a person that he or she owes money to another person is a declaration
against interest. Likewise, a statement that could lead to a person’s
prosecution for a crime would be a statement against penal interest and
would be admissible under this exception. For example, a statement in
which a person said that he or she committed a robbery would qualify as a
declaration against interest. Note that such an admission by a person who is
the defendant in a robbery trial would be an opposing party’s statement or a
confession and would be admissible as such. Such a declaration against
interest might be used in a situation in which a defendant seeks to use
another person’s statement to prove that the other person, not the defendant,
committed the crime. It should be noted that, under FRE 804(b)(3)(B), if
the statement “is offered in a criminal case as one that tends to expose the
declarant to criminal liability,” the statement must be “supported by
corroborating circumstances that clearly indicate its trustworthiness.”

Page 200

When a suspect in a criminal case makes an incriminating statement that

also might be used to incriminate a third person, the prosecutor usually
cannot use such statements as declarations against penal interest. This is so
due to decisions rendered by the United States Supreme Court. First, in
Williamson v. United States,16 in 1994, a plurality of the Court held that
FRE 804(b)(3)’s declarations against penal interest exception to the hearsay
rule do not allow admission of non-self-inculpatory statements that shift the
blame to another, even if they are made in a broader narrative that is
generally self-inculpatory. In the case, a man named Harris had admitted his
part in a drug transportation scheme but also said that Williamson was the
person in charge of the scheme. Some of the justices believed that no part of
Harris’ statement qualified as a declaration against penal interest, so a
majority of the Court agreed that Harris’ statement should not have been
admitted against Williamson.

In short, according to this case, a declarant’s statement such as “I did it, but
Joe made me do it” should not be admitted against Joe.

Then, in 1999, in Lilly v. Virginia,17 the Court reviewed a case involving the
admission of a blame-shifting declaration against interest admitted in
evidence in a state prosecution under Virginia’s evidence law. According to
Virginia law, such a blame-shifting statement was admissible within the
state-defined exception. A majority of the Supreme Court held that
admission of the evidence violated the Sixth Amendment’s Confrontation
Clause rights of the defendant, even if it was admissible under Virginia law.

Finally, in 2004, in Crawford v. Washington,18 the Court redefined the

Confrontation Clause and proclaimed that testimonial statements made by
an absent declarant not available for cross-examination cannot be admitted
against an accused in a criminal case. Blame-shifting declarations against
penal interest made to law enforcement professionals would clearly be
within Crawford’s ban.
Spontaneous Utterances: Present
Sense Impressions and Excited
Utterances (A.K.A. Res Gestae)
Many times people spontaneously react or say something in response to an
unusual event or condition that they have perceived. This spontaneity
provides the justification for two exceptions to the hearsay rule: present
sense impressions and excited utterances. The rationale is that when
spontaneous reactions or utterances result from a provocative event, time to
reflect on the event and therefore a person’s ability to fabricate a lie are
both limited. Thus, anything the person says or does is viewed as inherently
more trustworthy. This justification, however, has been undermined
somewhat by social science research, which indicates that people may be
less accurate in their perceptions when they are excited or surprised.
Nonetheless, the justification has continued to be accepted by the law.

Page 201

The present sense impression and excited utterance exceptions have their
origins in what was known as the res gestae exception to the hearsay rule.
Perhaps in no other area of the rules of evidence is there a term more
ambiguous and confusing than that of res gestae. Literally, the term res
gestae means “the things done.” The term is more generic than specific, and
many distinct exceptions fall within its definition in addition to spontaneous
utterances, although the spontaneous utterance exceptions are most
commonly associated with the term. Many commentators on evidence have
criticized the term as so encompassing that it creates an incentive for judges
and lawyers to avoid precision by simply referring to res gestae. The use of
the term is frowned upon by the courts; when seeking the admission of
evidence under the doctrine, a specific exception, rather than the doctrine
itself, should be referred to.
Spontaneous Utterances Defined: Present Sense
Impressions and Excited Utterances
A present sense impression is defined by FRE 803(1) as “[a] statement
describing or explaining an event or condition, made while or immediately
after the declarant perceived it.” This exception to the hearsay rule has two
limiting principles. First, the subject matter of the statement must describe
or explain some event or condition. The statement cannot simply relate to
an event or a condition. Second, the statement must be made while the
declarant was perceiving an event or immediately after perceiving that
event. Therefore, a slight lapse in time will not defeat admissibility, but, if
the time lapse can be measured in minutes rather than seconds, it will likely
be considered too long.

Unlike the restrictions on subject matter and time, the event or condition
that is perceived and explained can be any event or condition, and the
declarant’s participation in the event is not required. The event need not be
startling, provocative, or unusual. In fact, a present sense impression may
describe an event as innocuous as noticing the colors of a bird that landed
on a tree in the witness’s backyard.

The following are examples of present sense impressions that would likely
be admissible. A girl observing a man in a department store says to her
friend, “That leather outfit with spikes that man is wearing is funny
looking”; a husband says to his wife while observing their neighbor, “John’s
running quite fast; looks like he’s late for work”; a woman sees a car drive
through an intersection against the red light and says immediately
thereafter, “That man drove right through that red light.” Anyone who
overheard these statements may testify to them, provided there is sufficient
evidence to show that the declarant actually perceived these events.

The second form of spontaneous declarations is the excited utterance

exception to the hearsay rule. FRE 803(2) defines an excited utterance as
“[a] statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.” The event or
condition that the declarant perceives must be startling, as distinguished
from the present sense impression exception, in which any event or
condition is sufficient. The content of the statement, on the other hand, is
much more expansive than the present sense exception. Excited utterances
need only relate to the startling event or condition. Moreover, the excited
utterance exception may have a much broader time frame, depending on the
circumstances, than a present sense impression. The statement satisfies this
qualification if it was made under the stress of excitement prompted by a
startling event. For example, consider the case of an assault victim,
hospitalized for seven weeks with brain damage, who upon coming home
from the hospital was shown a newspaper article containing a photograph of
the defendant accused of the assault. Upon seeing the photograph, the
victim, in great distress, pointed to the picture and said, “He killed me, he
killed me.” The court considering the testimony describing these events and
the retelling of the statement held that the statement was admissible within
the excited utterance exception to the hearsay rule.19

Page 202

Examples of statements that fall within the excited utterance exception may
be helpful for a working understanding of the exception. A wife observing
her husband being shot by a member of the family may run from the home,
screaming, “John just killed my husband”; or the husband may stagger from
the house in a dazed condition and state, “John shot me”; or a pedestrian
who was almost run over by a car may exclaim, “I can’t believe that idiot in
the Camaro.” Anyone who overhears these statements may testify to the
content of the statement. Although it must be shown that the declarant
perceived the startling event, the statement itself is usually proof enough.

ON THE JOB

Most officers carry a digital recorder in their pocket or a smartphone to

record encounters with victims, witnesses, and suspects. Although most
officers record these conversations to protect themselves from false
accusations, there is another valuable use for such recordings. The officer is
able to obtain the exact wording of dying declarations, excited utterances,
and other statements. This makes the police report more accurate and assists
the judge in ruling on the admissibility of the hearsay statements.
Foundation and Rationale for the Exceptions
The requirements that must be met in order for a present sense impression
to be admissible as an exception to the hearsay rule are:

1. the declarant must explain or describe an event or condition; and

2. the description must be made while the declarant is perceiving the

event or condition or immediately thereafter.

For a statement to be admissible under the excited utterance exception to

the hearsay rule, the utterance:

1. must relate to a startling event; and

2. must have been made while the declarant was under the stress of
excitement caused by the event.

With both exceptions, there are a number of potential problems regarding

other foundational matters. These potential problems include proving the
existence of the event using the statement itself, proving personal
knowledge of the declarant, and determining what to do when the statement
is in the form of an opinion.

Page 203

The rationale for the present sense impression exception is that substantial
contemporaneousness makes the chance of deliberate or conscious
fabrication or misstatement unlikely. The best example of a present sense
impression would be a sports announcer’s play-by-play description of a
basketball game, where the ability to reflect upon a particular play is all but
eliminated. Truthfulness is thus ensured because of the involuntary
spontaneity of the announcer’s declarations.

The same principle underlies the exception for excited utterances. The
ability of the declarant to reflect upon and alter the perception of a startling
event is temporarily suspended by the condition of excitement prompted by
a startling event.
It is important to note that a person’s answer to a question is likely to be
viewed by a court as not being within the present sense impression
exception because the court will not view the statement as spontaneous. If
there is no startling event, and if the speaker is not saying anything about
his or her own state of mind, the court is more likely to find that there was
an opportunity for the speaker to reflect and be untruthful when answering a
question.

The Time Element

A major problem involved in the admissibility of spontaneous declarations
is the determination of the time element involved. How soon after the event
took place must the excited utterance or present sense impression be made
to be admissible? As already explained, the time frame is different for each
exception. Present sense impressions must be made while the event is
occurring or immediately subsequent to the event. The lapse of time from
event to statement must be very brief, consistent with the theory of
spontaneity underlying the exception.

Application Case

In the case of Booth v. State,20 the defendant was charged with the
premeditated murder and robbery of James Edward (“Pie”) Ross. In the
prosecution’s case, it was necessary to place Booth at the home of Ross on
the evening of the killing. Among the evidence presented for that purpose
was the testimony of Regina Harrison, who testified that she telephoned
Ross on the evening of his murder. She further testified that she heard on
the telephone the door to Ross’ home open and that she asked Ross who
was there. According to Harrison, Ross said that it was “some guy …
behind the door.” Other evidence linked the defendant to the scene that
night. Ross’ statement was admitted as a present sense impression
statement, and the Maryland Court of Appeals upheld the conviction of the
defendant on the evidence, including this statement.

Page 204
On the other hand, excited utterances require that the statement be made
under the stress of excitement. This requirement has at least two component
parts—a time element and a mental element. As to the time element, the
requirement poses the question whether there was sufficient lapse of time
between the event and the inquiry for the declarant to reflect upon what
happened and thereby be able to misrepresent the facts. The mental element
poses the question whether the declarant was still in such a state of mind
that he or she was not likely to have told a falsehood. Thus, for excited
utterances, the primary test of trustworthiness is not so much the time factor
as it is the state of mind of the declarant. Was the utterance made while the
mind was still so overwhelmed by the nervous excitement of the event that
the power to reflect was nonexistent? If so, the utterance is admissible. It is
not possible to form any firm criteria for measuring either time lapse or
state of mind, as conditions could well vary from one person to another, as
well as from one situation to another.

Application Case

In one case illustrative of an excited utterance, the declarations made by a

victim of a robbery were held admissible even though the declarations were
in response to inquiries. The victim-declarant was knocked unconscious
after being robbed. The victim was taken to the hospital still in the state of
unconsciousness some 45 minutes later. An officer requested that the
emergency room nurse ask the victim what had happened to him. About 20
minutes after arriving at the hospital, the victim regained consciousness for
about 4 or 5 minutes. During this time, the nurse asked the victim what had
occurred. He replied either, “I was beaten,” or “I was robbed.” He was next
asked if he knew who attacked him and he replied, “No.” Then the nurse
asked, “Was there more than one attacker?” He replied that there was more
than one. Finally, she asked if there were more than two, and the victim
said, “Maybe two or three.” The appellate court upheld the admission of all
the statements made to the nurse as excited utterances. The Supreme Court
of California stated: “Neither lapse of time between the event and the
declarations nor the fact that the declarations were elicited by questioning
deprives the statements of spontaneity if it nevertheless appears that they
were made under the stress of excitement and while the reflective powers
were still in abeyance.”21 The victim had been unconscious for most of the
time between the beating and the nurse’s questioning and, therefore, was
unable to reflect on his answers.

Utterance Must Relate to the Event Just

Preceding It
The second requirement for a spontaneous declaration (meaning a present
sense impression or excited utterance) to be admissible is that it must relate
to the event that just preceded the utterance. In the case of an excited
utterance, the declaration need only relate to the startling event. The
exception for present sense impressions, however, requires that the
declaration describe or explain the event. Whichever of these two
exceptions is applied, the declaration may not pertain to things that
happened the day before or at some other time, such as threats previously
made.

Page 205

Application Case

In the case of Houston Oxygen Co. v. Davis,22 Mrs. Cooper was riding in an
automobile when she saw a Plymouth car go by, at which time she stated,
“They must be drunk; we will find them somewhere on the road wrecked if
they keep that rate of speed up.” Fifteen minutes later, the car in which Mrs.
Cooper was riding came upon the scene of an accident involving the
Plymouth and a truck belonging to the Houston Oxygen Company. Mr.
Sanders, a passenger in the car along with Mrs. Cooper, overheard her
statement and was called upon to repeat it in court at a trial brought by the
passengers of the Plymouth against the Houston Oxygen Company. The
trial court held that the statement was inadmissible. Mrs. Cooper was also
called to testify at the trial and, although she was permitted to state her
opinion of the speed of the passing Plymouth, she, too, was prevented from
repeating her own statement predicting the fate of the vehicle. The appellate
court overruled the trial court, holding that the statement should have been
admitted as a present sense impression. According to the court, the form of
her statement “was one in which the witness was alluding to an occurrence
within her own knowledge in language calculated to make her ‘meaning
clearer to the jury’ than would a mere expression of opinion as to the speed
at which the passing car was moving.”23

Availability of the Declarant as a Witness

Under FRE 803, which includes present sense impressions and excited
utterances, the availability of the declarant is immaterial, and therefore no
showing of unavailability of the declarant is required. In fact, some students
of evidence and a majority of the Supreme Court of the United States24
think that spontaneous utterances may have more reliability than the
testimony of the declarant given while on the witness stand. This point of
view is based upon the fact that the declarant may not even recall having
made the utterance or may have been in such a state of shock as to not be
able to recall accurately what took place. If the original declarant is not
called upon to testify, generally it is not necessary to explain or give any
reason for not calling the declarant. Even if the original declarant is called
upon to testify, his or her spontaneous utterance may be related by another
witness who heard the utterance. This is most likely to take place if the
opposing side makes an allegation that the declarant had falsely testified.

There are times when an utterance of a victim of a homicide may be

introduced as a spontaneous declaration, particularly when the utterance
does not meet the foundational requirements as a dying declaration. The
utterance, however, must meet the foundational requirements of either an
excited utterance or a present sense impression.
Page 206

State of Mind
The state of mind exception to the hearsay rule, being an exception that
once fell under the res gestae doctrine along with excited utterances and
present sense impressions, has its roots in the old common law. This
exception allows a declarant’s assertion of his or her then-existing state of
mind to be admitted into evidence to prove that the person actually had that
state of mind. As the exception now exists under the modern rules of
evidence, there are three requirements:

1. the statement must relate to the declarant’s condition of mind or

emotion existing at the time he or she made the statement,

2. the statement cannot be one of memory or belief used to prove a fact

remembered or believed, and

3. the statement must have been made under circumstances indicating

apparent sincerity.

The seminal case that brought the state of mind exception to the forefront in
the United States was Mutual Life Insurance Co. v. Hillmon,25 decided by
the Supreme Court in 1892. The Hillmon case was an action on a life
insurance policy, and the question was whether Hillmon had actually died.
A body had been found at Crooked Creek, Colorado, which was Hillmon’s
destination, on March 5. The plaintiff contended that Hillmon and a man
named Brown were at Crooked Creek when Hillmon was accidentally shot.
The insurance company, on the other hand, maintained that a man named
Walters had accompanied Hillmon to Crooked Creek and that it was
Walters’ body, not Hillmon’s, that was found. A letter from Walters to his
sister containing the statement “I expect to leave for Crooked Creek on or
about March 5th, with a certain Mr. Hillmon” was offered to show Walters’
state of mind. The Court held the statement admissible to prove the future
conduct of the declarant, Walters, and Hillmon.26
State of Mind Declarations Defined
FRE 803(3) defines the state of mind exception to the hearsay rule as “[a]
statement of the declarant’s then-existing state of mind … or emotional,
sensory, or physical condition.” The rule further provides specific
examples, such as statements of intent, plan, motive, design, mental feeling,
pain, and bodily health. Memory of events is specifically excluded. If the
exception allowed the memory of events to be encompassed within the state
of mind definition, the virtual destruction of the hearsay rule would result.
To prevent this result, the drafters of the FRE excluded a “statement of
memory or belief to prove the fact remembered or believed” from the scope
of the rule.

Accordingly, the then-existing state of mind of the declarant will not

include statements such as “I was hungry on the flight over from New
York,” or “I wanted to punch him at the party last Friday,” or “I remember
that the red car was driving too fast when it hit the bus this morning.” The
exception includes statements that are backward-looking, except if the
statement relates to the execution, revocation, identification, or terms of the
declarant’s will. For purposes of the law enforcement professional, a
statement of memory or belief used to prove a fact remembered or believed
will always be inadmissible.

Page 207

The following are examples of statements that would generally be

admissible as within state of mind exceptions to the hearsay rule: “I don’t
trust Jim”; “I hate people who don’t signal”; “I love Nancy—I would never
do anything to hurt her”; “I’m leaving for London tonight.” These
statements describe the declarant’s state of mind at the time the statement
was made. The first statement may be indicative of the declarant’s motive
for refusing to entrust Jim with money. The second statement could show
the declarant’s motive for getting out of his car and attacking another driver.
The third statement may show the declarant’s lack of motive for the murder
of Nancy. Finally, the last declaration indicates that the declarant was
planning to take a trip to London.
Anyone who overhears declarations of a declarant’s state of mind may
testify to them in court, as these statements assist in arriving at the truth in
each situation. These statements may be used to prove an element of a
crime or defense, or they may tend to show that the declarant acted in
conformity with a then-existing intent or plan. For instance, an element of
first-degree murder is intent. If one can show the existence or lack of intent
from the declarant-defendant’s statement, then either the prosecution or the
defense may be able to sustain its case.

Foundation and Rationale for the Exception

The principles of reliability and necessity justify the state of mind
exception, as well as all other exceptions to the hearsay rule. Statements
falling within the exception are generally considered reliable because the
declarant is deemed to be the best commentator on his or her own state of
mind. Reliability is furthered because, since the statement is limited to the
then-existing state of mind of the declarant, there is a reduced possibility for
untruthfulness, at least with respect to memory. Of course, a person can
always lie about what is on his or her mind, but, unless the circumstances
show some basis for suspicion along those lines, the statement will be
admitted. Necessity also justifies this exception, in that evidence of a
person’s state of mind is limited to what the person says and does.
Obviously, we cannot look inside a person’s head to see what he or she is
thinking, so the declarant’s state of mind commentary is the most accurate
reflection of these thoughts. Moreover, later repetition of this statement in
court is the sole means of bringing the statement before the fact-finder. The
exception basically rests on a single principle—the declarant is the best
witness to what is in his or her own mind.

The major foundational question upon which admissibility turns is whether

the statement, when made, related the declarant’s “then-existing” state of
mind. Does the statement reveal what the declarant was feeling, mentally,
emotionally, or physically, at the time the statement was made? Also, is the
statement forward-looking? In other words, is the statement by the declarant
as to then-existing intent a basis from which one can infer the declarant’s
subsequent conduct?
Inferring Declarant’s and Second Party’s
Subsequent Conduct
On its face, the state of mind exception to the hearsay rule seems to impose
no limitation upon the use of a statement to prove the subsequent conduct of
a person, be it the declarant or another. In fact, under the Supreme Court’s
decision in the Hillmon case, a statement of the declarant’s intent to do
something that involves another person was allowed to be used to prove the
future conduct of that person. In that case, the declarant was Walters, who
stated that he intended to go to Crooked Creek with Hillmon. The Supreme
Court approved the use of Walters’ statement to prove not only that Walters
went to Crooked Creek but also that Hillmon went with him. This use of a
declarant’s statement to prove the conduct of another has been
controversial.

Page 208

The state of mind exception under the FRE, however, was intended by the
drafters to limit statements of intent by a declarant by making statements
admissible only to prove the declarant’s future conduct, not the future
conduct of another person.27 Pursuant to this limitation, statements
speculating about the future acts of any other person, either directly or by
inference, are to be excluded from evidence. Therefore, in many of those
states that have adopted the FRE, the use of a declarant’s state of mind
statement is not admissible to prove the conduct of a person other than the
declarant. That is the position of the courts in Arizona, for example.28 This
view is not uniformly held, however. Both federal and state courts’
decisions have taken the view that a declarant’s statement of intent to act in
the future with a third person may be used to prove both the declarant’s act
and the third person’s act if there are foundational safeguards. This was the
view adopted by the New York Court of Appeals (the highest New York
court) in People v. James.29 The foundational safeguards that court
established were a showing that

1. the declarant is unavailable;

 2. the statement of the declarant’s intent unambiguously contemplates
some future action by the declarant, either jointly with the
nondeclarant defendant or that requires the defendant’s cooperation for
its accomplishment;

3. to the extent that the declaration expressly or implicitly refers to a

prior understanding or arrangement with the nondeclarant defendant, it
must be inferable under the circumstances that the understanding or
arrangement occurred in the recent past and that the declarant was a
party to it or had competent knowledge of it; and

4. there is independent evidence of reliability, i.e., a showing of

circumstances that all but rule out a motive to falsify and evidence that
the intended future acts were at least likely to have actually taken
place.30

In a footnote, the New York Court of Appeals collected the decisions it

claimed followed a similar approach to the Hillmon doctrine.31 The reader
is cautioned that he or she may have to ascertain the approach currently
taken in any particular federal circuit or state court.

Application Case

In United States v. Pheaster,32 the court was confronted with a kidnap-

ransom conspiracy in which the victim was still missing. The court allowed,
over objection, a friend of the victim to testify that on the night of the
abduction the victim had told him and others that he was going to the
parking lot to meet the defendant to pick up a pound of marijuana and
would be right back. The court held that it was permissible for the fact-
finder (judge or jury) to draw the inference that the declarant actually
carried out his intention and met with the defendant on that night, since the
case was tried under the state of mind exception as defined before the FRE
went into effect. If the trial had been held after the FRE went into effect, the
victim’s statement of intent to meet the defendant could not have been
admitted to prove that he had been with the defendant.

Page 209
People v. Alcalde,33 a California case from 1944, was decided under the old
common law view of the state of mind exception. In Alcalde, the supreme
court of California upheld a conviction of a man for the murder of a woman
on evidence that the victim said that she was going out with the defendant
that night. The court held that, under the Hillmon doctrine, the victim’s
statement of her intent to do an act in the future was admissible to prove she
did it, even if it included the inference that another person was involved.

Availability of the Declarant as a Witness

The state of mind exception does not require a showing that the declarant is
unavailable as a witness. The declarant is in the best position to know what
is going through his or her own mind and, because state of mind
commentary is most accurate when made, the statement possesses sufficient
circumstantial guarantees of trustworthiness so that the declarant’s
availability as a witness is immaterial.

ON THE JOB

When considering hearsay, it is necessary to discuss “regular” hearsay as

well as “totem pole” hearsay. Say that you record an out-of-court statement,
such as “He’s the killer.” Another layer of hearsay is added by your police
report that includes the statement—your report is also an out-of-court
statement. Therefore, the prosecutor will need to find an exception or
exemption for each layer of the hearsay in order to get the statement
admitted into court. For example, your report may be within the business
records exception, while the witness’s statement might be within the excited
utterance exception.

Foundation and Rationale for the Statements for

Purposes of Medical Diagnosis or Treatment
Exception
There is another hearsay exception that encompasses a declarant’s state of
mind. It is the exception for the statements for purposes of medical
diagnosis or treatment. According to FRE 803(4), such a statement “is
made for—and is reasonably pertinent to—medical diagnosis or treatment;
and describes medical history; past or present symptoms or sensations; their
inception; or their general cause.” For example, if a person goes to a doctor
and says, “I fell down the stairs this morning and my back is killing me,”
that statement would be within this exception and admissible.

The admissibility of such statements is premised on the assumption that the

declarant has a strong motivation to be truthful and accurate; the desire for
proper diagnosis or treatment outweighs any motive to falsify. In addition,
because the declarant is usually describing his or her own condition, the
risks of inaccuracy are diminished. The risks of misperception or faulty
memory are also decreased, as the declarant is the best commentator on his
or her own condition.

Page 210

Thus, statements for purposes of medical diagnosis are admissible under

FRE 803(4) if the statements

1. are made for purposes of medical diagnosis or treatment;

2. are made by the patient or someone speaking on his or her behalf;

3. are made to a doctor or other medical person;

4. describe medical history, pain, symptoms, or causes (but not

attributing fault) thereof; and

5. are reasonably pertinent to the diagnosis or treatment.

Who Can Make the Statement

Statements made for purposes of diagnosis or treatment may be made by
either the patient or someone with an interest in the patient’s well-being.
For example, a mother of a child suffering from an illness may describe to a
doctor the symptoms her child was experiencing that led her to believe the
child was sick, and the mother’s statement would be admissible within this
exception. In determining whether the declarant is someone with an interest
in the well-being of a patient, the relationship between the declarant and
patient is most important. If the statement as to the condition or symptoms
of the patient is made by a disinterested bystander, then such a statement
will likely be held inadmissible.

To Whom the Statement Can Be Made

Statements under this exception are not limited to those made to a medical
doctor. Qualifying statements may be made to anyone associated with
providing medical services, including paramedics, nurses, or even family
members. In every case, however, the statements must be made for
purposes of medical diagnosis or treatment and must be reasonably
pertinent to the diagnosis or treatment.

Additionally, statements made for purposes of diagnosis or treatment are

admissible even if they are made after filing a lawsuit. Such statements can
be made to either an examining or a treating physician. The exception
covers statements made to examining physicians who conduct the
examination solely to enable them to testify at trial. Therefore, statements
made to a doctor who will be testifying at trial, or even in anticipation of
litigation, are admissible. This position is consistent with the liberal
approach taken by the FRE in admitting expert testimony; Rule 703 allows
experts to base their testimony on inadmissible evidence if the evidence is
of a kind ordinarily relied upon by experts in the field and the evidence is
more probative than prejudicial.

Even if the statement is found by the trial judge not to have been made for
purposes of medical diagnosis or treatment, admissibility may still be
granted. In cases in which Rule 803(4) is not satisfied, the statement may
still be admissible under the present sense, excited utterance, or state of
mind exception.

Page 211

Statements of Cause of Condition or Pain

The exception extends to statements of causation that are reasonably
pertinent to the diagnosis or treatment of the patient’s condition. A limit
exists as to when statements of causation will fall within the exception.
Under Rule 803(4), statements of fault will not ordinarily qualify under this
exception to the hearsay rule. For example, a patient’s statement that he was
“struck by an automobile” would qualify, but his statement that the “car was
driven through a red light” would not.34 In any given case, the question of
whether or not a statement made to medical personnel and describing fault
is within the exception is one for the trial judge to make based on the facts
and circumstances.

MYTH FACT
Statements made by a Statements made by the doctor to the patient are
doctor to a patient are not within the hearsay exception for medical
admissible within the diagnosis and treatment. Only the statements made
“medical statements” by, or on behalf of the patient, to the doctor or
exception to the other medical personnel are admissible within the
hearsay rule. exception.
Former Testimony
The testimony given by a witness at a prior proceeding is admissible in a
subsequent trial in certain circumstances as an exception to the hearsay rule.
As with the other exceptions, specific requirements must be met before the
former testimony may be introduced in evidence. The essential requirement
for the admissibility of the former testimony is the present unavailability of
the witness who gave the former testimony. Under the common law rule,
the exception applied only if both the party offering the former testimony
and the party against whom it is being offered are the same parties as in the
prior proceeding. Further, the common law allowed former testimony only
if the issues in both proceedings were identical. Federal Rule of Evidence
804(b)(1) now allows the exception to apply even if the parties and the
issues in the two proceedings are not the same. However, with respect to
former testimony used in a criminal trial, the defendant must have been a
party to the former proceeding and have had the full opportunity to examine
the witness whose testimony is being offered under the exception. This
exception is most often utilized in criminal cases when a witness who
testified at a preliminary hearing or a prior trial is unavailable in the first or
subsequent trial of an accused.

Sometimes a deposition given in the presence of the opposing side and with
the opposing side given the opportunity to examine the witness qualifies as
former testimony. A deposition is a written declaration, under oath, made
upon notice to the adverse party for the purpose of enabling the adversary to
attend and cross-examine. This declaration is usually in question-and-
answer form and is much the same as if it were actually related on the
witness stand. In a criminal case, the use of a deposition under the former
testimony exception usually occurs because there is some sufficient reason
the witness cannot appear. The most common acceptable reasons for
witness unavailability are death, illness, and hardship, as well as when the
witness is planning to leave the state and cannot return to testify at the trial.

Page 212
Foundation and Rationale for the Exception
By definition, the evidence within this exception consists of testimony
given by a witness in person, under oath, and subject to examination (direct,
cross-, re-direct, and re-cross) at some other trial or proceeding. The only
difference when compared with regular testimony is that the “witness” is
now absent and the fact-finder has no opportunity to observe the witness.

Since the exception applies only when the declarant is unavailable, the true
rationale for the exception is necessity. The rule states a preference for live
testimony, if possible, allowing the use of the recorded prior testimony only
when absolutely necessary. The constitution demands, through the
Confrontation Clause of the Sixth Amendment, that the accused in a
criminal case be given the right to face his or her accusers. When the
accuser has previously testified and satisfied the requirements of the former
testimony exception, the courts have held the Confrontation Clause to be
satisfied. The courts have so held since 1895.35

The foundational requirements for former testimony are

1. the witness must be shown to be unavailable in accordance with one of

the situations set forth in FRE 804(a);

2. the testimony sought to be introduced must have been under oath and
subject to cross-examination; and

3. either the opponent of the testimony or a party with a similar motive

must have had an opportunity to question the declarant in the earlier
proceeding by way of direct examination, cross-examination, or re-
direct examination. Former testimony may not be used against a
criminal defendant who was not a party to the earlier proceeding.

Opportunity to Have Effective Cross-Examination

Rule 804(b)(1)(B) allows the admissibility of former testimony if the
testimony is “offered against a party who had—or, in a civil case, whose
predecessor in interest had—an opportunity and similar motive to develop it
by direct, cross-, or re-direct examination.” The clear meaning of the rule
prohibits the use of former testimony against a criminal defendant if the
defendant was not a party in the prior proceeding.

As the rule states, the party against whom the former testimony is now
being offered must have had an “opportunity” and “similar motive” to
develop the testimony of the declarant as the party in the former
proceeding. If the party chose not to examine the declarant-witness for
tactical or other reasons, the requirement will still be satisfied. The party
need only have had the opportunity to examine the witness, and the fact that
the party chose not to take advantage of that opportunity does not destroy
the opponent’s ability to use the evidence.
Business and Public Records
Certain reports or records that record acts, events, conditions, opinions, or
diagnoses may be admissible as either business or public records if certain
requirements are met by the proponent of the evidence. These exceptions
were developed in the early 1900s as a result of the law’s recognition that, if
businesses and governments were relying on records of regularly conducted
activities, then such records should be sufficiently reliable to be admissible
in court.

Page 213

The exceptions are quite remarkable in that they permit the proof of
underlying facts by paper records without requiring the person who has
knowledge of the underlying facts to be called as a witness. For example, if
the prosecution wanted to prove that the defendant in a criminal case had
telephoned the homicide victim just an hour before the murder, the
custodian of records of the telephone company could be called to submit the
pertinent records. With proper foundation, the record would be admitted to
show that the telephone call was, in fact, made from the telephone number
assigned to the defendant. In this example, the custodian has no knowledge
of the fact that the defendant made any particular telephone call; perhaps no
one other than the defendant (and the dead victim) would have that
knowledge. Nonetheless, the telephone company’s records would be
admissible as business records to prove that the call was made.

The matters that are subject to proof under this exception are almost
limitless. In recent years and in many states, however, there has developed a
limitation upon the use of the exception in criminal cases to prohibit proof
of matters observed by law enforcement officers. The effect of this
limitation is to prevent the introduction of the contents of police reports on
behalf of the prosecution in a criminal case.

Business Records—Description and Foundation

For the business records exception, both the common law rule and FRE
803(6) require that the record must be identified as one

1. made at or near the time of the event;

2. by, or from information transmitted by, a person with knowledge;

3. made in the regular course of business; and

4. kept in the course of regularly conducted business activity.

A record made by someone who does not have knowledge of the

transaction or event recorded is still admissible if the underlying
information was transmitted by a person in the business who did. Consider
a record typed by a clerk who was not a witness to the transaction in
question. If the information came through regular business channels from
the person who conducted the transaction, the record would qualify. The
clerk might not even know who the source of the information was, only that
it came through regular channels.

Also, the record must be written at or near the time of the event or
transaction; the passage of time may make the record inadmissible. For
example, a receipt written six months after the sale of goods would not
qualify for the exception.

The traditional method for laying the foundation for a business record is for
the custodian of records for the business, or some other qualified person, to
testify to the regular practice of keeping the business records and how the
record in question was kept. By an amendment to FRE 803(6) effective in
2000, this foundation can be laid by a written declaration of the custodian
or other qualified person stating the necessary foundational facts. Such
written declaration must be “certified” and comply with another rule of
evidence, FRE 902(11) or 902(12). Both of those rules relate to
certification, and the authentication through certification, of documents or
facts. This amendment makes it much easier for proof of business records
by the admission into evidence of the documents without the necessity of
sponsoring live witnesses.
Page 214

If the person testifying (or making a written declaration) is not the

custodian of records, the witness must merely be able to describe the
business practices sufficiently to satisfy the trial judge that the record was,
in fact, made and kept in the regular course of the business and contains
information by or from a person with knowledge within the business.

Public Records—Description and Foundation

A record kept by a public agency—a branch of the federal, state, or local
government—like a business record, may be introduced into evidence
within the public records exception to the hearsay rule. The exception,
under FRE 803(8), encompasses “[a] record or statement of public office.”
There are three types of public records. First are those that set forth “the
office’s activities.”36 This form of public record is admissible in any type of
case. One example is a report by a city police department of the number of
arrests made in a certain police district during a particular time period.

The second type of public record is one setting forth “a matter observed
while under a legal duty to report.”37 On its face, this category of public
record would include police reports containing records of observations by
police officers and reports containing analyses of suspected drugs by
government chemists. However, this exception under the FRE specifically
excludes “in a criminal case a matter observed by law enforcement
personnel.”38 By this language, Congress specifically prohibited the use of
police reports, as contrasted with the testimony of the officer, to be admitted
into evidence against an accused in a criminal case. Since the FRE have
been adopted in 43 states, this is the law throughout most of the United
States—California, Kansas, Massachusetts, Missouri, New York, and
Virginia are the six states that have not adopted the framework of the FRE.

The third type of public record is one setting forth “factual findings from a
legally authorized investigation.”39 An example of this type of public
record is an investigative report of an officer of the Judge Advocate General
of the Navy containing an opinion as to the cause of the crash of a Navy
training aircraft.40 However, public records within this category are
permitted only in civil proceedings and when offered into evidence against
the government in criminal cases. In other words, such evaluative reports
cannot be used by the prosecution in a criminal case.

The foundation required for public records is a showing

1. that the record is an official document of the agency,

2. that it was recorded by an employee of the agency, and

3. that the employee had a duty by law to report such information

accurately.

Unlike the foundation for authentication required for most objects and
documents, public records are self-authenticating. Chapters 11 and 13 cover
the general foundations for authentication. Self-authentication means that
the authenticity of the document may be determined on its face, without
resort to outside evidence. In the case of public records, self-authentication
is usually provided by a certification of correctness by the custodian of
records or other person authorized by the agency to make certifications.41

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Law Enforcement Reports May Not Be

Admissible in Criminal Cases
In criminal cases, police and other law enforcement reports may not be
admissible in the prosecution’s case-in-chief for policy reasons, even
though they are both business and public records. This is because of the
Confrontation Clause, as previously discussed. This issue is not completely
settled or clear, however. The business records exception, under the FRE,
contains no specific prohibition against the use of police and other law
enforcement reports in criminal cases, as does the public records exception.
Therefore, it may be argued that such law enforcement reports may be
offered pursuant to the business records exception. If a law enforcement
report is offered to prove only simple matters, is based on the first-hand
knowledge of the maker of the report, does not involve conclusions, and is
indicated to be trustworthy by the circumstances of its preparation, most
state and federal courts will admit the report when offered by the
prosecution.42 Although one court has specifically held that even these
conditions for admissibility are not proper, the matter is far from settled.43

The Supreme Court’s 2004 decision in the Crawford 44 case also limits the
use of police reports as evidence under the Confrontation Clause, to the
extent that such reports contain records of witnesses’ statements made to
law enforcement personnel. The case banned the introduction of such
statements if they are found to be “testimonial,” and one of the specific
types of statements said to be “testimonial” was witnesses’ statements to
police officers that a reasonable person would expect to be used later at
trial.

The Court further defined what constitutes testimonial statements by

witnesses to law enforcement personnel in the 2006 decision in Davis v.
Washington.45 The decision was rendered in a consolidation of two cases,
one involving a 911 call reporting a domestic violence attack by the victim
(Davis) and the other involving statements by a victim of domestic violence
made to investigating police officers responding to a call (Hammon). The
Court found that the 911 caller’s statement, speaking about events as they
were actually happening and facing an ongoing emergency, even though
questioned by the 911 operator (who was an agent of the police), was not
testimonial under the Crawford test. In contrast, the victim’s statements to
the police officers who came to the scene in response to the call were made
when no emergency was in progress and when the police were seeking to
determine what had happened in a past suspected criminal event. These
statements were testimonial under the Crawford standard.

Another possibility involving witnesses’ and victims’ statements, often

arising in domestic abuse cases, is the situation in which the victim- or
witness-declarant is absent from the defendant’s trial because the defendant
has committed some act to keep the declarant from appearing. The most
extreme such situation is where the defendant is charged with killing the
declarant and the prosecution wishes to introduce statements made by the
declarant reporting the defendant’s threats against the declarant. That was
the case in Giles v. California.46 The defendant was charged with killing the
declarant, his ex-girlfriend. At trial, the prosecution introduced statements
made to police responding to a domestic violence call a week before the
homicide. The victim reported that Giles had threatened to kill her. The
California courts held that the statements were admissible because the
defendant had forfeited his confrontation rights by killing the victim—his
intentional criminal act was what made the victim unavailable to testify.

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The Supreme Court reversed the state courts and held that, in order for the
forfeiture by wrongdoing exception to the Confrontation Clause to apply,
the act causing the declarant’s unavailability at trial must have been
intended to prevent the victim from testifying. In the Giles case, the lower
courts had not found that to be so; hence, the exception from the
Confrontation Clause could not apply. The Court did note that it would be
possible in domestic abuse cases for the evidence of past abuse to support a
trial court’s finding that the defendant did act to prevent the declarant-
victim from testifying by killing the victim.47 However, if the defense
wishes to introduce part of a police report, then it may do so. Once part of
the police report is admitted, pursuant to the doctrine of completeness, the
prosecution may ask for the whole report to be admitted. The doctrine of
completeness provides that if a party seeks to admit part of a document, the
opposing party may “require the introduction at that time of any other part
or any other writing or recorded statement which ought in fairness to be
considered contemporaneously with it.”48

The United States Supreme Court further defined what is testimonial under
Crawford in connection with state laboratory analysts’ certificates of
analysis of a substance as cocaine. In the case, Melendez-Diaz v.
Massachusetts,49 the defendant had been convicted of drug offenses. In a 6-
3 opinion (with a concurrence by Justice Thomas), Justice Scalia concluded
that the introduction of the lab analysts’ affidavits were testimonial and
introduction of such evidence violated the defendant’s confrontation rights.

In 2011, in a five-Justice majority, the Supreme Court reaffirmed its

Melendez-Diaz decision in Bullcoming v. New Mexico.50 In Bullcoming, the
results of a blood test were necessary to prove an aggravated form of a DUI
offense. Unlike Melendez-Diaz, the prosecution presented a live witness
from the lab, rather than simply the report. The analyst who actually
performed the test, however, was on unpaid administrative leave, and the
state did not bring him to court. Instead, the state presented the testimony of
a supervisor who could speak from personal knowledge about the lab’s
procedures, but who had not participated in or observed performance of any
part of the test on the defendant’s blood. The majority opinion, authored by
Justice Ginsburg, concluded on the basis of Melendez-Diaz that the
analyst’s report was testimonial. The New Mexico Supreme Court had not
denied the report was governed by Melendez-Diaz but held that the
analyst’s report was not governed by the Confrontation Clause. The court
reasoned that, because the analyst had transcribed the results of a gas
chromatograph machine without offering any additional interpretation, he
was a “mere scrivener,” with the true accuser being the machine itself.
Justice Ginsburg’s opinion rejected this theory, however, stating that the
analyst’s report did more than repeat numbers yielded by the machine.
Rather, it amounted to a certification of the entire manner in which the test
was conducted. Therefore, the Supreme Court held that the Confrontation
Clause does, in fact, apply to such testimony, and lab analysts are no
different in this regard from other witnesses.

The New Mexico Supreme Court in Bullcoming had also held that the lab
supervisor could substitute for the analyst because he was qualified to
testify about the machine and the laboratory’s procedures. Justice Ginsburg
shot down this argument, stating that the supervisor could not testify to
what the analyst knew—not only about the test but about why the analyst
had been put on unpaid leave. More fundamentally, the “Clause does not
tolerate dispensing with confrontation simply because the court believes
that questioning one witness about another’s testimonial statements
provides a fair enough opportunity for cross-examination.”51

Page 217

Five days after deciding Bullcoming, the Supreme Court granted review of
Williams v. Illinois.52 In Williams, an in-court expert testified that two DNA
profiles matched; one of them was reported by an out-of-state lab, from
which no witness came to testify at trial. That lab’s report was not
introduced, but the essence of it—the deduction of a DNA profile that,
according to both a computer program and the in-court expert, matched that
of the accused—was made clearly known to the judge, sitting as trier of
fact. In a plurality opinion written by Justice Alito, along with the four
dissenters from Melendez-Diaz and Bullcoming, they agreed that the DNA
profile was not testimonial. The opinion emphasized that the report at issue
not only appeared to be reliable but also did not accuse a targeted individual
of a crime. When considering forensic evidence, therefore, formal forensic
reports are testimonial. This means that any type of testing including, but
not limited to, drug, blood alcohol, and fingerprint reports that involve
forensic testing by an analyst and that are clearly incriminating will be
inadmissible without the testimony of the original analysts.

Proof of Absence of Business or Public Records

Entry
Sometimes it is necessary to prove, through the absence of an entry in
business or public records, that an event did not occur. Such a fact could be
just as important as proof of the affirmative. Of course, the relevance of the
absence of an entry to prove an event did not take place is that if the records
of a business or public entity do not contain a record of an event, and the
records are regularly complete, then it is not likely the event occurred.
Thus, it is not surprising that there are hearsay rule exceptions for the
absence of both business [FRE 803(7)] and public [803(10)] records.
Pedigree or Family History
Frequently, a person’s vital statistics, such as birth, baptism, marriage,
divorce, or death, must be proven in court. Such information is easily
proven by a person who has personal knowledge of the event, such as a
witness to the event. However, many times there is no such witness
available or it would be difficult or a waste of time to track down that
witness and call him or her to the stand. Both under the common law rule
and the FRE, there are provisions for proof of such personal information.
Under the FRE, two forms of hearsay are admissible to prove personal
statistics or history: (1) by written record of certificate and (2) by reputation
concerning personal or family history.

Written Records
Written records of births, marriages, legitimacy, death, and so on are
liberally admissible to prove their existence. Under FRE 803(9), all records
of births, deaths, or marriages are admissible if the reports were made to a
public agency pursuant to requirements of law. This exception is different
from the public records exception because the person filling out the report
does not necessarily have to witness the event recorded. Under FRE
803(11), the records of religious organizations, if kept regularly by the
organization, are admissible to prove birth, marriage, divorce, legitimacy,
ancestry, and relationship by blood or marriage. Certificates of the person
who administered the ceremony are also admissible under FRE 803(12).
Also, family records such as entries in a Bible, genealogies, charts,
engravings on rings, and engravings on portraits or tombstones are
admissible under FRE 803(13).

Page 218

Reputation to Prove Family History

Finally, reputation among a person’s family or community members
concerning a person’s birth, adoption, marriage, divorce, death, legitimacy,
relationship by blood, or other personal or family history is admissible
under FRE 803(19). Such reputation evidence is presumed to be reliable.
Past Recollection Recorded: Only
Read into the Record
A witness, even a law enforcement professional, may have trouble
remembering specific facts while testifying on the stand. As discussed in
Chapter 5, the lawyer may, at this point, show a witness a memorandum or
record concerning a matter that the witness once had personal knowledge of
and that was written when the matter was fresh in the witness’s memory.
However, if this writing still does not refresh the witness’s memory, the
writing then may be introduced as past recollection recorded under FRE
803(5). The key to past recollection recorded is that the writing was written
at or near the time of the event when the witness’s memory was fresh. Too
much passage of time may disqualify the writing from admissibility. The
writing must be one that was either written or “adopted” by the witness
whose memory has failed. In other words, the witness must be able to
testify that the writing contained the correct information at the time that the
writing was made, even though the witness cannot now remember the
details.

If admitted, the writing may only be read into the record by the proponent
of the evidence and may not be received as an exhibit unless the opposing
party offers the writing as an exhibit. More simply, the writing is read by
the attorney or witness into the record and in front of the jury. However, the
jury will not have the document to look at during its deliberation unless the
opposing party offers the writing into evidence.

Figure 7–3, in the Review and Application section, summarizes the hearsay
rule and the exclusions, exemptions, and exceptions thereto.

Hearsay
Exclusion,1 Rationale or
Example
Exemption,2 Reasoning
Exception3
 Hearsay
Exclusion,1 Rationale or
Example
Exemption,2 Reasoning
Exception3
Only an intended The act of suicide,
Statement—
assertion raises offered to prove guilty
exclusion
credibility issues conscience
Offered for the
truth of the No credibility issue “Your money or your
matter asserted involved life” threat in robbery
—exclusion
Prior Contradictory
Declarant available and
inconsistent description of get-away
prior statement made
statement of a car made at preliminary
under oath, subject to
witness— hearing in contrast to
penalty of perjury
exemption testimony at trial
Prior consistent Declarant available and Consistent statement
statement of a usable only for limited made by declarant at a
witness— purpose of rebutting time before motive to
exemption attack on credibility fabricate existed
Prior
Declarant available and “That’s the man who
identification
fact of identification is attacked me” while
statement of a
highly probative of victim picks out
witness—
identity defendant at a lineup
exemption
The adversary system:
Opposing
anything a party does or Defendant attempted to
party’s
says can be used cover up his
statement
against him or her; movements on the day
(admission)—
“You said it; you the victim was killed
exemption
explain it”
 Hearsay
Exclusion,1 Rationale or
Example
Exemption,2 Reasoning
Exception3
Adoptive
opposing Defendant stands silent
People ordinarily deny
party’s as victim’s wife says to
accusations against
statement him, “You killed my
them if they are untrue
(admission)— husband”
exemption
Authorized
opposing
party’s “I am selling this
Statements made by
statement heroin for me and the
agents of parties are
(admission) by defendant” (there must
usable against the
agents, be evidence that the
parties just as though
employees, and seller and the defendant
they had made the
co-conspirators were partners in the
statements themselves
of a party heroin business)
opponent—
exemption
People who know they
are dying do not lie
when they make
statements about what
Dying “I know I am about to
they believe to be the
declaration— die and the defendant is
cause of their
exception the one who shot me”
impending death, and
the law needs such
evidence in homicide
cases
 Hearsay
Exclusion,1 Rationale or
Example
Exemption,2 Reasoning
Exception3
People ordinarily do not
make statements
Declaration
exposing themselves to “I am the one who took
against interest
civil or criminal the money”
—exception
liability unless the
statements are true
People who make
statements describing
Present sense “The defendant sure
events while they are
impression— looks mad enough to
happening do not have
exception kill someone”
time to reflect and lie
about them
People who make
statements relating to “Oh, my goodness, that
Excited exciting events while red car hit the woman
utterance— they are under the stress in the cross walk like
exception of the excitement do the driver was aiming
not reflect about them at her”
and lie
People do not likely lie
about what is then and Defendant’s statement
State of mind—
there on their minds “I hate John,” made the
exception
and, besides, how else day John was murdered
could we know?
Statements for “Doctor, I have never
People are not likely to
medical suffered from insomnia
lie to their doctors
diagnosis or before the murder I
when they seek medical
treatment— witnessed; now I can’t
treatment
exception sleep at all”
 Hearsay
Exclusion,1 Rationale or
Example
Exemption,2 Reasoning
Exception3
“The defendant is the
man who attacked me,”
Testimony by a witness
testified to at a
under oath, fully
Former preliminary hearing by
examined at a prior
testimony— a witness who is now
legal proceeding, is
exception dead but was fully
almost as good as live
examined by both
testimony
sides’ lawyers at the
preliminary hearing
The telephone
company’s record that
If it is reliable enough
Business shows the telephone
for the business to use
records— call threatening the
it, it is good enough for
exception victim came from the
the courts
phone assigned to the
defendant
The Department of
Public employees under
Motor Vehicles report
Public records a legal duty to report
shows the getaway car
—exception facts are going to do so
was registered to the
accurately
defendant
Information about The church record of
births, deaths, and other the marriage between
family history, whether defendant and his wife
Pedigree, or written in a Bible or in proves that they are
family history a church record, or part married and therefore
—exception of family reputation, is she has a marital
relied upon and privilege not to testify
therefore is likely against him if she
accurate wishes
 Hearsay
Exclusion,1 Rationale or
Example
Exemption,2 Reasoning
Exception3
“I know that I wrote
People who swear that
down the license
Past they wrote down details
number of the getaway
recollection accurately at the time
car accurately on this
recorded— should be believed even
slip of paper, even
exception if they cannot now
though I cannot
remember the details
remember the number”

FIGURE 7–3 Hearsay principles and examples.

Review and Application
Summary
1. Hearsay is an out-of-court statement offered in evidence to prove the
truth of the matter asserted in the statement.

2. Although there are numerous reasons for the hearsay rule, the principal
rationale is that the law prefers the declarant of a statement to be
present in court, under oath, and subject to cross-examination rather
than to have someone repeat in court what the person said out-of-court.

Page 219

3. A statement, for purposes of the hearsay rule under the FRE, is an oral
or written assertion or nonverbal conduct intended by the declarant as
an assertion.

4. The five subcategories of NOTMA are (1) operative legal fact, (2)
state of mind of the hearer, (3) state of mind of the declarant, (4) state
of mind (knowledge) of the declarant on the “traces of the mind”
theory, and (5) statements that are otherwise not offered for the truth of
the matter asserted (NOTMA) but to prove something else.

5. The two general categories of exemptions from the hearsay rule under
the FRE are prior statements of witnesses and admissions by a party
opponent.

6. The three types of statements by witnesses that are exempt from the
hearsay rule are prior inconsistent statements, prior consistent
statements, and statements of prior identification of a person.

7. The five types of admissions by a party opponent that are exempt from
the hearsay rule are
 1. the party’s own statement,

2. the party’s admission by adoption,

3. an admission by a person authorized by a party to speak,

4. an admission by an agent or employee of a party, and

5. an admission by a co-conspirator of a party.

8. The four foundational requirements for the dying declaration exception

to the hearsay rule are

1. the declarant must be unavailable,

2. the trial must be either a prosecution for homicide or a civil

action,

3. the statement must be made while the declarant believes that

death is imminent, and

4. the statement must concern the cause or circumstances of what

the declarant believed to be impending death.

9. The two species of spontaneous declarations exceptions to the hearsay

rule are present sense impressions and excited utterances. The
difference between them is that a present sense impression must be
made while the declarant is perceiving the event described or
immediately thereafter, while an excited utterance need only relate to
an exciting or startling event and may be made at any time that the
declarant is still under the influence of the excitement of the event.

10. A major limitation upon the state of mind exception to the hearsay rule
is that the statement must reflect the then-existing thoughts of the
declarant. The statement may be forward-looking, as in stating an
intent to do something in the future. However, the statement cannot
contain an assertion of a fact remembered or believed.
11. The foundational requirements for the statements for purposes of
medical diagnosis or treatment exception to the hearsay rule are that
the statement must

1. be made for purposes of medical diagnosis or treatment;

2. be made by the patient or someone speaking on the patient’s

behalf;

Page 220

3. be made to a doctor or other medical person;

4. describe medical history, pain, symptoms, or causes (but not

attributing fault) thereof; and

5. be reasonably pertinent to the diagnosis or treatment.

12. The foundational requirements for former testimony are

1. the witness must be shown to be unavailable in accordance with

one of the situations set forth in FRE 804(a);

2. the testimony sought to be introduced must have been under oath

and subject to cross-examination; and

3. either the opponent of the testimony or a party with a similar

motive must have had an opportunity to question the declarant in
the earlier proceeding by way of direct examination, cross-
examination, or re-direct examination.

13. The foundational requirements for the business records exception to

the hearsay rule are that the record must be identified as one

1. made at or near the time of the event;

2. by, or from information transmitted by, a person with knowledge;

3. made in the regular course of business; and

 4. kept in the course of regularly conducted business activity.

Key Terms
hearsay 180

declarant 182

Confrontation Clause 182

operative legal fact 189

state of mind of the hearer 190

state of mind of the declarant 190

“traces of the mind” theory 191

prior inconsistent statement 193

prior consistent statement 193

statements of prior identification 193

opposing party’s statement (admission) 194

adoptive opposing party’s statement (admission) 194

vicarious opposing party’s statement (admission) 195

dying declaration 195

declaration against interest 199

res gestae 201

present sense impression 201

excited utterance 201

 state of mind 206

statements for purposes of medical diagnosis or treatment 209

former testimony 211

deposition 211

business or public records 212

self-authentication 214

doctrine of completeness 216

Questions for Review

1. What is a simple definition of hearsay? How is hearsay defined by the
courts?

2. What is the rationale for the hearsay rule?

3. How is a statement defined in the FRE?

4. What are the five subcategories of statements that are not offered for
the truth of the matter asserted (NOTMA)?

5. What are the two general categories of exemptions from the hearsay
rule under the FRE?

Page 221

6. What are the three types of prior statements by witnesses that are
exempt from the hearsay rule under the FRE?

7. What are the five types of admissions by a party opponent that are
exempt from the hearsay rule under the FRE?
 8. What are the four foundational requirements for the dying declaration
exception to the hearsay rule?

9. What are the two species of spontaneous declarations exceptions to the

hearsay rule and what is the difference between them?

10. What is a major limitation upon the state of mind exception to the
hearsay rule?

11. What are the foundational requirements for the statements for purposes
of medical diagnosis or treatment exception to the hearsay rule?

12. What are the foundational requirements for the former testimony
exception to the hearsay rule?

13. What are the foundational requirements for the business records
exception to the hearsay rule?

Thinking Critically About Evidence

1. In the prosecution of a defendant, John, for the murder of Bill, the state
calls a witness to testify that he heard Debbie (a friend of the
defendant) say to the defendant, “Bill is a gang member who has
knifed several people.” Is this statement hearsay? Is it admissible?

2. A defendant is on trial for assault with a deadly weapon. In order to

prove that the defendant was carrying a knife at the time of the attack,
the prosecution calls a witness to testify that, as the defendant was
walking past him on the day and time in question, the witness’s wife
said, “Look, that guy has a knife.” Is this statement hearsay? Is it
admissible?

3. In a criminal homicide prosecution, the defense, in order to prove its

defense of insanity, calls a witness to testify that the defendant
repeatedly told people, “I am the President of the United States.” Is
this evidence hearsay? Is it admissible?
 4. In the prosecution of a defendant for burglary, the prosecution calls the
arresting officer to testify that, on the way to the police station after he
was arrested, the defendant confessed that he had committed the crime.
Is this evidence hearsay? Is it admissible?

Workplace Applications
1. A police officer arrived at the scene of a gang initiation party to find
one of the inductees stabbed several times as part of his test for
membership. The inductee had lost a lot of blood and was near
unconsciousness. When the officer asked the wounded man who
stabbed him, the man replied, “Baby Killer,” a rival gang member. The
victim recovered but could not be found and called as a witness at
Baby Killer’s criminal trial. At the trial, the prosecutor calls the police
officer to testify to the victim’s statement as a dying declaration. Can
the statement be admitted? Explain why or why not.

2. A police officer responds to a domestic dispute call. The wife has

some bruises on her arms. When the officer asks her what happened,
she points to her husband and says, “He did it to me. He threw me
around the room like a rag doll.” The husband does not say anything
but stands with his head hanging down, shaking it back and forth.
Should the husband’s reaction or lack thereof be admitted as an
adoptive admission?

Page 222

Ethical Dilemma
1. Assume that you are a police officer and a witness in a trial of a brutal
homicide that you investigated. You are on the witness stand and
cannot remember the date that you collected critical bloodstain
evidence from the scene of the crime. The prosecutor asks you if your
memory could be refreshed if you examined your report. You respond
affirmatively, the prosecutor hands you a copy of your report, and you
read it. You still don’t remember the date but now, having read the
 report, you see the date on it. The prosecutor next asks, “Now, is your
memory refreshed?” How should you answer? Explain.

Endnotes
1. Fed. R. Evid. 801(c).

2. J.G. Phillmore, History and Principles of the Law of Evidence, 357

(1850), as cited and presented in Roger C. Park & Richard D.
Friedman, Evidence, Cases and Materials 193 (13th ed. 2019).

3. Fed. R. Evid. 801(b) defines a declarant as a person who makes a

statement.

4. 541 U.S. 36 (2004).

5. Id. at 68.

6. Id. at 51.

7. Davis v. Washington, 547 U.S. 813 (2006).

8. Davis v. Washington, 547 U.S. 813, 822 (2006).

9. 562 U.S. 344 (2011).

10. Id. at 367–70.

11. 576 U.S. 237 (2015).

12. Giles v. California, 554 U.S. 353 (2008).

13. Fed. R. Evid. 801(a): “Statement” means a person’s oral assertion,

written assertion, or nonverbal conduct, if the person intended it as an
assertion.

14. See Roger C. Park, I Didn’t Tell Them Anything About You: Implied
Assertions as Hearsay Under the Federal Rules of Evidence, 74 Minn.
 L. Rev. 783 (1990).

15. This example was created by the late John Kaplan to illustrate the very
point made in the text in the form of a made-up case. This was
included in his casebook on evidence. The current version of the
casebook is Park & Friedman, supra, note 2, at p. 199.

16. 512 U.S. 594 (1994).

17. 527 U.S. 116 (1999).

18. 541 U.S. 36, 124 [Link]. 1354 (2004).

19. United States v. Napier, 518 F.2d 316 (9th Cir. 1975).

20. 508 A.2d 976 (Md. Ct. App. 1986).

21. People v. Washington, 459 P.2d 259, 263 (Cal. 1969).

22. 161 S.W.2d 474, 476 (Tex. Comm. App. 1942).

23. Id. at p. 477.

24. See White v. Illinois, 502 U.S. 346, 355–56 (1992).

25. 145 U.S. 285 (1892).

26. The Hillmon case was extremely controversial, and the controversy
persisted for many decades in the courts. A few years ago, Professor
Mimi Wesson led a project to exhume the body interred at Oak Hill
Cemetery in Lawrence, Kansas, to see if modern science could end the
controversy. In February 2007, a professor of anthropology from the
University of Colorado issued a report asserting the body was, in fact,
that of John Hillmon. See [Link]
[[Link]

27. Fed. R. Evid. 803(3), advisory committee’s note.

28. State v. Krone, 897 P.2d 621, 625–26 (Ariz. 1995) (concurring
opinion).

29. People v. James, 717 N.E.2d 1052, 1057–60 (N.Y. 1999).

30. Id. at 1060.

31. Id. at 1058 n. 4.

32. 544 F.2d 223 (9th Cir. 1976).

33. 148 P.2d 627 (Cal. 1944).

34. Fed. R. Evid. 803(4), advisory committee’s note.

35. Mattox v. United States, 156 U.S. 237 (1895).

36. Fed. R. Evid. 803(8)(A)(i).

37. Fed. R. Evid. 803(8)(A)(ii).

38. Id.

39. Fed. R. Evid. 803(8)(A)(iii).

40. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).

41. See Fed. R. Evid. 902(4).

42. See State v. Bertul, 664 P.2d 1181 (Utah 1983), a seminal case cited by
many state courts. The court in Bertul cited and quoted from United
States v. Smith, 521 F.2d 957 (D.C. Cir. 1975), another oft-cited
decision. With respect to federal courts’ treatment, see Robert A.
Brazener, Annotation, Admissibility of Police Reports Under Federal
Business Records Act (Federal Rules of Evidence, Rule 803, and
predecessor amendments, 31 A.L.R. Fed. 457, § 3 (West 2021). With
respect to state courts’ treatment, see George L. Blum, Annotation,
Admissibility in State Court Proceedings of Police Reports as Business
Records, 111 A.L.R.5th 1 (West 2018).
 Page 223

43. Compare United States v. Oates, 560 F.2d 45 (2d Cir. 1977) (held:
Custom’s Service chemist’s report that substance was cocaine not
admissible in criminal case under Fed. R. Evid. 803(8) or 803(6)), with
United States v. Rosa, 11 F.3d 315 (2d Cir. 1993) (held: autopsy report
of medical examiner not a law enforcement report within the Oates
decision and, therefore, it is admissible in criminal case).

44. Crawford v. Washington, 541 U.S. 36, 124 [Link]. 1354 (2004).

45. Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006).

46. Giles v. California, 554 U.S. 353 (2008).

47. Id. at 377.

48. Fed. R. Evid. 106.

49. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

50. Bullcoming v. New Mexico, 564 U.S. 647 (2011).

51. Id. at 2708.

52. 132 [Link]. 2221 (2012).

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Design Element: ©Ingram Publishing

Page 226

Opposing Party’S Statements

(Admissions) and Confessions

Hill Street Studios/Matthew Palmer/Blend Images LLC

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Chapter Outline
Introduction—Opposing Party’s Statements (Admissions) and Confessions
Generally

Opposing Party’s Statements (Admissions)

Acts as Opposing Party’s Statements (Admissions)

Opposing Party’s Statement (Admission) by Silence in Response to

Accusatory Statements

Statements by an Accused While in Police Custody

Confessions—General Principles and Considerations

Development of the Free and Voluntary Rule

Development of Additional Requirements

Confessions Excluded Due to Violation of Due Process of Law: Coerced

Confessions

Confessions Coerced by Physical Force

Confessions Coerced by Psychological Pressure

Exclusion of Confessions Due to Violation of Rights Secured Under

Miranda v. Arizona

What Constitutes Custody for Purposes of Miranda

What Constitutes Interrogation for Purposes of Miranda

What Constitutes a Valid Waiver of Miranda Rights

What Constitutes a Valid Waiver After a Suspect Asserts His or Her

Rights

Exceptions to the Miranda Rule

Miranda, the Exclusionary Rule, and the Fruit of the Poisonous Tree
Doctrine
 Exclusion of Confessions Due to Violation of the Sixth Amendment Right to
Counsel

When the Right to Counsel Rule Applies

What Constitutes Deliberate Elicitation Versus Interrogation

When and How an Officer Can Communicate with an Accused After the
Right Attaches

How an Accused Can Waive the Right to Counsel

Confession Given After an Unlawful Search and Seizure May Be Excluded

The Continued Importance of Confessions as Evidence

Procedure for Introduction of Confessions

Wording of Confessions

Confession Implicating a Codefendant

Proof of the Crime in Addition to a Confession—the Requirement of Corpus

Delicti

Review and Application

Chapter Objectives

This chapter examines specifically the law of evidence as it relates to statements

made by the accused in a criminal case, commonly known as opposing party’s
statements (admissions) and confessions. After reading this chapter you will be
able to:

Define an opposing party’s statement (admission).

Distinguish between confessions and opposing party’s statements

(admissions).

State the fundamental requirement for a confession to be usable as evidence.

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Describe the test for voluntariness of a confession.

State the requirements of Miranda.

Define custody for purposes of Miranda.

Define interrogation for purposes of Miranda.

State the burden of proof required to prove a waiver of Miranda rights by a

suspect.

Describe when interrogation of a suspect who has invoked the right to

counsel may resume.

List the three exceptions to the requirement of Miranda warnings.

Explain when the Sixth Amendment right to counsel attaches.

State the rule governing interrogation of a suspect when right to counsel has
attached.

Define what constitutes deliberate elicitation.

Explain the procedures to determine the admissibility of a confession at trial.

Introduction—Opposing Party’s
Statements (Admissions) and
Confessions Generally
Under the FRE, any statement made by a party is an opposing party’s
statement (admission) and can be used in evidence against him or her as
long as the statement is relevant to the case. Opposing party’s statements
cover a broad category of evidence. Also, an opposing party’s statement
presents no hearsay problems, as pointed out in Chapter 7, because
opposing party’s statements are exempt from the hearsay rule.

Opposing party’s statements are not limited to verbal statements made by a

party—they can be inferred from a person’s demeanor, conduct, and acts, or
even silence. Statements made before trial by criminal defendants are also
opposing party’s statements and can be used as evidence at trial. However, a
defendant’s statement made while in police custody may be inadmissible
unless the prosecution proves that the statement was made voluntarily and
that specific rights (Miranda and the Sixth Amendment right to counsel)
were waived before the statement was made.

Certain opposing party’s statements by criminal defendants are also known

as confessions. A defendant’s statement is a confession when the statement
is a conscious acknowledgment of guilt by an accused. Both opposing
party’s statements generally and confessions must be voluntarily given to be
admissible against an accused in a criminal case.

Confessions and opposing party’s statements frequently overlap, and it is

sometimes difficult to decide which type of statement was given. A
dictionary definition of a confession is “a full and direct acknowledgment
of all the elements of the crime.”1 The distinction between a confession and
an opposing party’s statement (admission) has been stated this way by one
court: “A confession is an admission of the crime itself. An opposing
party’s statement (admission) concerns only some specific fact which, in
turn, tends to establish guilt or some element of the offense.”2 For purposes
of the law enforcement professional’s understanding, the most important
fact is that both opposing party’s statements (admissions) and confessions
must be voluntarily made in order to be used in court against a person
accused of a crime. Moreover, the FRE does not have a rule specifically
covering confessions, and therefore the distinction between opposing
party’s statements (admissions) and confessions is of little importance in
terms of determining admissibility in most jurisdictions.

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MYTH FACT
In order for a
An opposing party’s statement (admission) is any
statement to qualify
statement by a party (that is, a defendant in a criminal
as an opposing
case or either plaintiff or defendant in a civil case)
party’s statement
that is offered in evidence by an opponent (the
(admission), it must
prosecution in a criminal case) at trial. The statement
be a conscious
need not have been against the interest of the party
acknowledgment of
making the statement at the time it was made. The
guilt or complicity
only requirement is that the statement be relevant to
at the time it was
some issue at trial.
stated.

The law of evidence is not nearly as important in deciding the admissibility

of opposing party’s statements (admissions) and confessions as is the
Constitution of the United States. The United States Supreme Court has
imposed requirements on law enforcement professionals in connection with
opposing party’s statements and confessions stemming from the Fourth,
Fifth, Sixth, and Fourteenth Amendments. After briefly describing how the
law of evidence affects opposing party’s statements by a criminal
defendant, this chapter will explore the impact of these constitutional
provisions on the admissibility of defendants’ confessions in a criminal
trial.
Opposing Party’s Statements
(Admissions)
Statements or acts by an accused before trial that are not an
acknowledgment of guilt but do link the accused with a crime or are in
some ways incriminating are opposing party’s statements (admissions). The
accused need not intend to incriminate himself or herself for the statement
or act to be an opposing party’s statement (admission). An opposing party’s
statement (admission) may be a simple acknowledgment of being at the
crime scene or of being acquainted with the victim of a crime; it may also
be a denial of being at the scene. Any statement or act could become
incriminating once coupled with other evidence. For example, assume an
officer arrests the accused and states, “You are under arrest for robbery.”
The accused then responds, “I was out of town yesterday afternoon.” Since
the officer said nothing about the place and date of the robbery, the
accused’s response discloses peculiar knowledge that only the perpetrator of
the crime would know. The response constitutes a “false denial” and is
admissible against the accused on a theory of consciousness of guilt.

Acts as Opposing Party’s Statements (Admissions)

Acts are also classified as a form of opposing party’s statement if they are
inconsistent with an accused’s innocence. Thus, acts such as trying to
escape detection and arrest and attempting to hide a crime are an opposing
party’s statements and may be introduced against the accused at a trial. For
example, an act that constitutes an opposing party’s statement would be a
defendant nodding his head when the officer asks him if he committed the
crime. However, these opposing party’s statements by conduct fall more
logically under the subject matter of consciousness of guilt, which will be
discussed in detail in Chapter 11.

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Opposing Party’s Statement (Admission) by
Silence in Response to Accusatory Statements
The defendant’s silence in circumstances in which a person would normally
speak out may constitute an opposing party’s statement (admission).
Whether or not this silence may be introduced as an opposing party’s
admission of guilt depends upon the conditions under which the silence
occurred. If a person makes a statement in front of another, accusing him or
her of committing a crime and no reply or denial is made, this is considered
to be an implied, or adoptive, opposing party’s admission of guilt as long as
it is clear that the accused person was in a position to hear and understand
the accusation. A person does not ordinarily remain silent in the face of an
accusation of having committed a crime unless the accusation is true. For
example, assume the defendant said nothing in response to her mother’s
statement “You robbed our neighbor, didn’t you? I know you did!” Faced
with this accusation, it is presumed that an innocent person would deny the
validity of the statement. Silence is an indication that the statement or
accusation is true, that the accused has “adopted” or made the statement his
or her own, and carries an implication of guilt.

Additionally, if an accused denies an accusation, the accusatory statement

and the denial are both inadmissible because the denial is a “self-serving
statement” and is inadmissible as hearsay. However, if the accused makes a
statement not amounting to a denial, it may be introduced if the effect is the
same as an opposing party’s admission by silence. For example, when the
mother asked her daughter what she did with the jewelry she stole from the
neighbors, the daughter replied, “Who, me?” This is not a denial, and the
inference of guilt may be drawn just as if she had remained silent.

Statements by an Accused While in Police

Custody
A statement made by a person while in police custody is usually not an
adoptive opposing party’s admission because a person in custody is not
required to say anything. Even if a suspect is not in custody, just being in
the presence of officers and under suspicion is enough to cause a reasonable
person to remain silent in the face of an accusation. For example, assume an
officer asks the defendant, “You ran over that kid with your car, didn’t
you?” The defendant’s silence probably would not be an opposing party’s
statement (admission) because many people accused of a crime wish to
consult with an attorney before they speak with the police, even if they are
innocent.
Confessions—General Principles
and Considerations
Throughout human history, statements have been coerced from people by a
variety of means that are unacceptable today. For this reason, opposing
party’s statements (admissions) and confessions are often subject to close
scrutiny. For some time, courts have taken a rather dim view of confessions
as evidence. In the twentieth century, the United States Supreme Court
developed the exclusionary rule, and the Court continues to develop
complex and strict rules pertaining to the admissibility of confessions in
evidence. It is important for the law enforcement professional to be aware
of how these rules were developed through a succession of Supreme Court’s
decisions. Studying this progression of cases will lead to a better
understanding of how to obtain confessions that will be admissible in court.

Page 231

Development of the Free and Voluntary Rule

The use of confessions as a tool to convict persons of crimes dates far back
into human history. History also reveals that, in the past, many confessions
used to obtain convictions were coerced through various forms of torture,
such as the rack and screw or the application of red-hot irons to bare flesh.
Many of these confessions were false, since a person suffering from
excruciating pain will say anything just to get immediate relief. As the use
of coerced confessions as evidence fell into disfavor, the law developed the
fundamental requirement that a confession, to be usable as evidence, must
be made freely and voluntarily.

ON THE JOB

Often, the exact wording of the defendant’s admission or confession is of

extreme importance to a successful prosecution. Out in the field, the officer
should use a personal recorder. At the police station, interviews should be
recorded. Such recordings may also document the circumstances and
conditions under which the statements were made. Recording using a
device that captures both visual and audio is preferable to simply recording
audio alone because it records more information. Along with the recording,
a signed and witnessed statement from the defendant should also be
obtained. The statement should include the content of the defendant’s
admissions or confessions along with any waiver of constitutional rights
that might be applicable.

For a confession to have been made freely and voluntarily, the person
making the confession must have been in a position to exercise complete
mental freedom at the time the confession was made. The courts have been
strict in their interpretation of what will affect this “complete mental
freedom” and have ruled that any pressure applied to induce a confession
will be considered interference, causing the confession to be excluded from
evidence at trial.

At first, courts were primarily concerned with whether the confessor had
been subjected to any physical abuse to induce the confession. Later, the
courts came to recognize that other factors might affect freedom of the
mind, such as psychological pressures upon the accused before or during
interrogation. Psychological pressure has been interpreted as any act or
statement that may place the accused under a mental strain, such as a threat
of violence, a threat against members of the accused’s family, extreme
deception, a promise of reward, or duress.

The requirement that the confession must be given freely and voluntarily
satisfies two concerns of modern jurisprudence. First, unless the confession
is so given, there may be a doubt about the fundamental fairness of its use
at trial against the accused; second, unless it is given freely and voluntarily,
the accused’s right against self-incrimination may be violated.

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Development of Additional Requirements

Until about the middle of the twentieth century, the admissibility of
confessions was entirely dependent upon meeting the requirement that the
confession be freely and voluntarily given. If it was, the confession was
admitted in evidence against the accused. This approach required the courts
to decide each case individually with respect to the admissibility of a
confession, rather than deciding on the case according to a categorical rule.
Then, since the 1940s, the Supreme Court of the United States began taking
an entirely new approach to judging the admissibility of confessions.

First, the high Court developed a per se rule applicable only in the federal
courts. This rule excluded potentially coerced confessions by addressing the
practice of detaining arrested persons in isolation for an extended period of
time. Admissibility did not depend on whether the confession was
voluntary, but rather was based on whether an arrested suspect was brought
before a committing magistrate for arraignment “without unnecessary
delay” following the suspect’s arrest. This requirement became known as
the McNabb-Mallory3 rule, named after two Supreme Court’s decisions
establishing the rule. Under the McNabb-Mallory rule, unnecessary police
delay in arraigning a suspect who was in police custody led to the exclusion
of any statement obtained during the period of unnecessary delay,
regardless of whether it was given freely and voluntarily.

The prompt arraignment rule, or requirement, is still contained in Federal

Rule of Criminal Procedure 5(a). However, the McNabb-Mallory rule,
which was not constitutionally based, never applied to the states and has
been overshadowed by the Supreme Court’s decision in Miranda v.
Arizona,4 which is discussed later.

The Supreme Court also extended the basis for a finding of a coerced
confession from threatened and actual physical coercion to psychological
coercion as well. In 1944, in Ashcraft v. Tennessee,5 the Court held that 36
hours of continuous interrogation alone was enough to render the accused’s
confession coerced. Also, in the 1959 case of Spano v. New York,6 the Court
held that psychological pressures rendered a confession inadmissible
because of coercion. Three justices agreed with the outcome of the Spano
case but stated that they would have found Spano’s confession inadmissible
for another reason also. The justices pointed out that Spano, who had
already been indicted for the murder he was later convicted of, was not
provided counsel when he was interrogated. At the time of the Spano
decision, the Sixth Amendment right to counsel had not yet been held to
apply to the states. The requirement of the right to counsel was applied to
the states in 1963 with respect to felony trials7 and with respect to
nonfelony criminal trials in 1972.8

In 1964, in Escobedo v. Illinois,9 the Supreme Court found that a police

interrogation of a suspect violated the Sixth Amendment right to counsel.
Escobedo had not been formally charged and, during a lengthy questioning,
his attorney had tried repeatedly to see his client. The Court said that, since
Escobedo’s attorney was trying to see him, in the absence of any warning,
Escobedo’s statement should be excluded from trial as a violation of the
right to counsel. Also in 1964, the Court held in Massiah v. United States10
that police interrogation (defined as deliberate elicitation) of an indicted
person in the absence of an attorney (or waiver by the accused) is a
violation of the Sixth Amendment’s right to counsel.

Page 233

Up to the time of the Escobedo and Massiah decisions, the Supreme Court
had been seeking ways to curtail what it perceived to be police abuses in the
context of private (incommunicado) interrogations of suspects. Although
the use of actual violence and even psychological coercion had been
condemned, the Court was still dissatisfied with what it believed to be more
sophisticated forms of abuse. The Court’s decisions from McNabb to
Escobedo also reflected a dissatisfaction with the free and voluntary rule as
an effective means of dealing with perceived police excesses in obtaining
confessions. Under the free and voluntary rule, each case required a factual
assessment of the accused’s claim that his or her confession was coerced.

Thus, the stage was set for the Court’s revolutionary 1966 ruling, Miranda
v. Arizona.11 Miranda requires the police to inform a suspect in custody

1. of his or her right to remain silent,

 2. that anything the suspect says might be used in court against the
suspect,

3. that the suspect has the right to have counsel present during
questioning, and

4. that counsel will be appointed for the suspect if the suspect cannot
afford counsel.

In the absence of these Miranda warnings and a waiver of the rights to

remain silent and to counsel during police interrogation, any statement
obtained by the police cannot be used against the accused at trial, even if
the statement is not coerced.

Beginning almost immediately after the Court’s Miranda decision, judges

and legal scholars began asserting that Miranda’s warnings were not
constitutionally mandated. Some decisions of the Supreme Court even
endorsed this notion. In 2000, in Dickerson v. United States,12 however, the
Court settled the matter, reconfirming that the United States Constitution
requires that Miranda procedures be followed. The effect of the Dickerson
decision will be discussed more fully later in this chapter in connection with
the coverage of the topic of the exclusionary rule and Miranda. Since
Dickerson, it is clear that Miranda’s requirements must still be followed by
state and federal law enforcement professionals.
Confessions Excluded Due to
Violation of Due Process of Law:
Coerced Confessions
There are a variety of reasons for condemning the use of coerced
confessions.13 A coerced confession could be unreliable. Even if the
confession is reliable, it should be excluded from evidence because the
police should “obey the law while enforcing the law.”14 Moreover, the
American criminal justice system is accusatorial, not inquisitorial—our
founders abhorred coercive techniques of inquisition. Thus, the use of
coerced confessions is inherently offensive to the American conception of
justice. In addition, the principle of personal autonomy dictates that a
confession that is not freely and voluntarily given should not be used.
Finally, the exclusion from evidence of a coerced confession will, arguably,
deter police misconduct.

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Underlying all of the reasons for excluding a coerced confession is the

fundamental requirement that a confession must be freely and voluntarily
given. The test for voluntariness, according to the Supreme Court of the
United States, is the totality of the circumstances.15 The question is
whether, under the totality of the circumstances, the defendant’s will was
overborne when the defendant confessed. Any conduct by law enforcement
officers that, under the totality of the circumstances, could cause a
reasonable person in the position of the accused to feel coerced would
violate these principles.

In order for a defendant to claim that a confession was involuntarily given,

there must be some action by a federal or state agent. Action by a private
citizen, or self-induced compulsion, will not lead to the exclusion of the
statement from trial unless there is some state statutory provision to the
contrary.
Application Case

In Colorado v. Connelly,16 a man who was suffering from a severe mental

disturbance (he heard the voice of God order him to confess to a murder or
commit suicide) approached a police officer on the street and confessed to a
murder. Connelly told the officer that he had been in several mental
institutions. The officer recited Miranda warnings to Connelly and then
questioned him about the crime. Connelly’s confession and statements were
admitted at his trial, and he was convicted of the murder. The Supreme
Court of the United States held that the confession was admissible because
Connelly’s confession was compelled by the voice in his head, not by any
agent of the government.

Confessions Coerced by Physical Force

It is unfortunate that at times, law enforcement officers, eager to solve
crimes and attain convictions, resort to physical force to acquire
confessions. The term “third degree” has been used to describe such
conduct. When courts began to address this conduct, they took a dim view
of the use of such confessions as evidence against an accused. Therefore,
the courts have long excluded confessions obtained through the use of
violence or inhumane treatment of the accused. The exclusion of such
confessions goes beyond the fact that the confession might be untrue;
fundamental fairness requires that the court not be a party to the use of
evidence obtained through such coercion.

Application Case

In one of the first state court decisions involving confessions to be reviewed

by the United States Supreme Court, in 1936, the confessions were obtained
through the use of physical force. In Brown v. Mississippi,17 the Court
reversed a murder conviction of three African American defendants who
had been convicted in a local court primarily on the basis of their
confessions. The three defendants had been whipped by local law
enforcement authorities until they confessed. During the trial, the
confessions were admitted before the manner in which they were obtained
was proven. The defense argued that, by the introduction of these
confessions, the defendants had been denied due process of law.

Page 235

The Supreme Court held that inasmuch as the confessions had been induced
by brutal treatment, the defendants had been denied due process of law, and
the conviction was reversed. The appeal was made strictly upon the
contention that due process of law had been denied; the guarantee against
self-incrimination contained in the Fifth Amendment was not argued.

Although the type of inhumane treatment found in many early cases

involving physical abuse is rare today, courts are still skeptical about the
procedures used by officers in interrogating suspects, and a number of
extremely restrictive rules have been enacted. Not only will actual physical
mistreatment of the accused cause a confession to be excluded, but extreme
discomfort suffered by the accused during the interrogation might also lead
to statements being ruled inadmissible. Even lengthy, uninterrupted
questioning, without providing food, rest, or bathroom use, could be
sufficient grounds for a court to exclude a statement from trial as
involuntary.

Application Case

In Ashcraft v. Tennessee,18 the defendant was suspected of involvement in

the murder of his wife. State law enforcement officers took him to an office
in the county jail 12 days after his wife’s death, where for 36 hours he was
held incommunicado, without sleep or rest, and relays of officers,
experienced investigators, and highly trained lawyers questioned him
without respite. The state then claimed that Ashcraft confessed to hiring a
man to kill his wife. The defendant and the state disagreed on many of the
facts of the case, but, based on those facts not disputed, the Supreme Court
concluded that the situation was inherently coercive. The Court ruled that
mental freedom could not have existed in a situation in which the police
clearly brought substantial coercive force to bear on a lone suspect.
Therefore, the Court concluded that the confession was not voluntary and
that the 36-hour interrogation itself violated due process. The Court ordered
the conviction to be reversed.

Confessions Coerced by Psychological Pressure

Overcoming the will of a suspect can be achieved just as effectively by
application of psychological pressure as it can by application of physical
force. Psychological pressure, or “mental stress,” takes many forms. It may
result from a mere suggestion that, if the accused will confess, “things will
go easier” for him or her. It may be some other promise or reward, such as
an assurance that no action will be taken against the accused’s spouse, or
that every effort will be made to assist the family of the accused in
procuring welfare aid if the confession is made. The mental stress may be
created by a threat of action to be taken against the family of the accused,
such as taking his or her children and placing them with domestic services,
unless a confession is forthcoming.

Page 236

Other forms of psychological pressure may be brought to bear upon an

accused that could lead a court to conclude that the suspect’s confession
was not freely and voluntarily given. Interrogation techniques are often
aimed at manipulation of individual weaknesses. Such ploys as showing
false sympathy, criticizing the victim, making deceptive claims about the
strength of the case against the accused, or playing “good cop, bad cop”
could cause a court to find that a statement was coerced. The operative
word in such a situation is “coerced.” Some deception, or even an outright
lie, may be permissible, as long as the action by the government agent is not
so outrageous as to overcome the free will of the suspect. In recent years,
the Supreme Court has been more tolerant of deception than the decisions
of earlier Courts might suggest.19

Application Case

In Spano v. New York,20 the Supreme Court of the United States held that a
confession that was gained by the application of psychological pressure was
involuntary and therefore inadmissible in a criminal trial. Spano, a young
man with only a junior high school education, shot and killed a man who
bullied, humiliated, and beat him. After disappearing for a week, during
which time he was indicted for murder, Spano telephoned a close friend,
Bruno, who was a rookie police officer. Spano told Bruno about the killing
and said he was going to get a lawyer and give himself up. Bruno relayed
this information to his superiors. The following evening Spano,
accompanied by an attorney, surrendered to the police.

Spano was questioned, out of his attorney’s presence, for about five hours
but, heeding his attorney’s instructions, he refused to talk. Spano requested
to see his attorney, but the request was denied. At that point, those in charge
of the investigation thought that Bruno could be of assistance. They called
Bruno and told him to inform Spano that Spano’s telephone call to him had
caused him a “lot of trouble.” Further, the investigators instructed Bruno to
try to win sympathy from Spano for Bruno’s wife and children. Bruno
played his part, but Spano still refused to answer any questions. It was not
until Bruno’s fourth effort to gain Spano’s sympathy that the suspect finally
agreed to tell the authorities about the shooting and offered a confession.
The confession was introduced in evidence at trial, and the jury convicted
Spano. The Supreme Court reversed the conviction, finding that the
confession was obtained in violation of the Due Process Clause of the
Fourteenth Amendment based on a totality of the circumstances. The
Court’s decision relied particularly on four factors:

1. the official pressure from a barrage of questioning by several different

people,

2. the effect of denying Spano’s requests to speak with his attorney,

3. the fatigue resulting from the interrogation’s length and the time of
night, and

4. the sympathy falsely created by Bruno.

Page 237

Exclusion of Confessions Due to

Violation of Rights Secured Under
Miranda v. Arizona
Perhaps no legal decision is more widely known by the general public than
Miranda v. Arizona21—the case that imposed the requirement that police
inform criminal suspects of their rights to remain silent and to have an
attorney present during questioning. Also, perhaps no legal decision has
generated more criticism and debate. Not only has the law enforcement
community criticized Miranda but also Supreme Court justices have voiced
concern. As a result, Miranda, decided by a bare five-Justice majority, has
been narrowly applied.

A recent controversy over Miranda has been generated. The surviving

Boston Marathon Bomber suspect, Dzhokhar Tsarnaev, was charged with
federal crimes while in serious condition in a Boston hospital. Prior to the
charges being brought, the Attorney General of the United States
announced that Tsarnaev would not be given his Miranda warnings. This
touched off a heated debate among legal observers and commentators. A
magistrate judge and a representative from the U.S. Attorney’s office went
to Tsarnev’s hospital room after 16 hours of interrogation of him and did
read him his Miranda warnings, after which Tsarnev immediately stopped
talking. In any event, the initial failure to give warnings might be justified
by the public safety exception, discussed later in this chapter. Also, if the
warnings were not given, there is no constitutional violation unless any
improperly obtained statements are admitted in court against the suspect.

The Miranda rule requires that a law enforcement officer read Miranda
warnings to a suspect before custodial interrogation. The officer must
advise the suspect that the suspect has the right to remain silent; that
anything the suspect says can and will be used against the suspect at trial;
that the suspect has a right to an attorney being present during questioning;
and that, if the suspect cannot afford an attorney, one can be provided at no
cost to the suspect. After issuing these warnings, the law enforcement
officer must verify that the suspect understands those rights and, before
questioning the suspect, the officer must secure an affirmative waiver by the
suspect of these rights.

In the establishment of the famous Miranda warnings, the Supreme Court

brought together elements of an accused’s right to remain silent, right to an
attorney, and right to be protected against coercion by agents of the
government. Originally, the Court imposed the procedures at the earliest
stage of contact between government and a criminal accused (when the
person first became the focus of the investigation)—long before formal
charges were brought. Later decisions of the Court have revised that to
impose the procedures whenever there is “custodial interrogation.”

Miranda was actually one of four cases decided by the Supreme Court at
the same time, each of which presented the issue of the admissibility of
statements made by a suspect in custody. In the Miranda case, the
defendant was arrested at his home and taken in custody to a Phoenix police
station. There, the complaining witness identified him as the person who
had kidnapped and raped her. After a 2-hour interrogation, the police
emerged from the interrogation room with a written confession by Miranda.
The confession and the officer’s testimony describing Miranda’s prior oral
confession were admitted against him. The jury convicted Miranda of
kidnapping and rape.

Page 238

The Supreme Court reversed Miranda’s conviction, holding that the

officer’s failure to advise Miranda of his right not to be compelled to
incriminate himself and his right to have an attorney present during the
interrogation rendered the defendant’s confessions inadmissible at trial. The
Court announced the requirements of the now-famous Miranda warnings:22

Prior to any questioning, the person must be warned that he has a right
to remain silent, that any statement he does make may be used as
evidence against him, and that he has a right to the presence of an
 attorney, either retained or appointed. The defendant may waive
effectuation of these rights, provided the waiver is made voluntarily,
knowingly and intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to consult with an
attorney before speaking there can be no questioning. Likewise, if the
individual is alone and indicates in any manner that he does not wish
to be interrogated, the police may not question him. The mere fact that
he may have answered some questions or volunteered some statements
on his own does not deprive him of the right to refrain from answering
any further inquiries until he has consulted with an attorney and
thereafter consents to be questioned.

ON THE JOB

Most police departments issue credit card-sized Miranda cards that list the
rights that must be read to and waived by the suspect before questioning
may begin. The officer should not recite these rights from memory but
rather read them from the issued card, for several reasons. First, an officer
might omit a right. Second, an officer might recite the rights using slightly
different language. Finally, when the officer testifies in court about the
reading of the rights, the officer can produce the actual card used and
confidently state that he or she read the warning, word for word, from the
card.

In those situations in which the officer is faced with a suspect who does not
speak English or for whom English is a second language, a different
problem is presented. For such instances, many police departments have
issued Miranda rights cards in other languages, such as Spanish, Chinese,
Korean, or Vietnamese. However, only officers who qualify as translators
should administer warnings in a language other than English.

In Miranda, the Supreme Court of the United States ended its search for a
way of dealing with the “problem” of claims by criminal suspects that they
were being subjected to improper police tactics during the interrogation
process. The Court imposed upon law enforcement a set of procedures to be
followed in questioning suspects, which, if followed, would lead to
admission in evidence at trial of any statements made during custodial
interrogation. On the other hand, failure to follow these guidelines results in
any such statements being inadmissible. In other words, these rules have an
“automatic” result. The Court made the rules automatic to avoid the
necessity of relitigating the question of the voluntariness of a confession in
every case. Instead, the trial courts can look to see whether the police
followed the Miranda rules and decide each case on that basis.

Page 239

Even though the rules are “automatic,” a defendant may still claim that he
or she was actually coerced or actually denied the right to counsel.
However, a statement made after law enforcement compliance with
Miranda would most likely be ruled valid. In addition, as will be seen in the
next chapter, if a confession is the poisoned fruit of an illegal search or
seizure, then it may be held inadmissible on that ground alone.

Today, the Miranda requirements apply to custodial interrogations of

suspects by law enforcement officers. When an officer has a suspect in
custody and engages in interrogation, the officer must inform the suspect of
Miranda rights, and the officer cannot interrogate the suspect unless the
suspect affirmatively waives those rights. If the suspect invokes his or her
rights at any time, the officer must cease interrogation and scrupulously
honor the rights the suspect asserts. Only if the suspect reinitiates
communication with the officer and again affirmatively waives his or her
Miranda rights may the officer further interrogate the suspect. In the event
that the police do obtain a statement from a suspect in violation of the
Miranda rules, the statement itself will be excluded, but any evidence
derived as a result of the statement may not be subject to the exclusionary
rule. Finally, there are court-created exceptions to the Miranda rule.

Thus, the relevant topics for discussion relating to the Miranda rules are (1)
what is custody for purposes of Miranda, (2) what is interrogation for
purposes of Miranda, (3) what constitutes a valid waiver of Miranda rights,
(4) what constitutes a valid waiver after a suspect has asserted his or her
rights, (5) what are exceptions to the Miranda rule, and (6) what is the
effect of the exclusionary rule on statements taken in violation of Miranda.
What Constitutes Custody for Purposes of
Miranda
In the Miranda decision, the Supreme Court stated that the Miranda rules
apply when a person is “taken into custody or otherwise deprived of his
freedom of action in any significant way.”23 The Court has viewed this
language as referring to an actual arrest, rather than the act of merely
stopping and questioning a suspect. Custody results when a police officer
restrains a person in a manner consistent with a formal arrest, regardless of
the situation or intent of the officer. Anytime a person is taken into custody,
the officer is required to give Miranda warnings before asking any
substantive questions about the offense.

Just prior to the Miranda decision, the Court decided the case of Illinois v.
Escobedo.24 The Court held in the Escobedo case that the defendant was
entitled to his Sixth Amendment right to counsel, even though the police
interrogation occurred before the accused was formally charged. The Court
said that, as the focus of the investigation, the defendant was entitled to his
right to counsel. However, the Court’s decision was limited to the specific
circumstances of the case—the defendant was interrogated in custody, his
lawyer had instructed him not to talk, the police did not inform him of his
right to have his lawyer present, and the lawyer was trying to contact the
defendant. Therefore, the Miranda definition of “custody” as the trigger for
the required warnings has supplanted the Escobedo test of whether or not
the defendant is the “focus” of the investigation. Though the Escobedo
decision has never been overruled, it is now of little more than historical
interest.

Page 240

Whether the suspect is in custody under the Miranda test is, as stated
earlier, a matter of whether, under a totality of the circumstances, a
reasonable person would think his or her freedom was restrained in any
significant way. The custody test is an objective one, but in 2011, in J.D.B.
v. North Carolina,25 the Supreme Court, in a 5-4 opinion held that a child’s
age is a factor in assessing that determination so long as the age was known
to the officer at the time of police questioning, or would have been
objectively apparent to a reasonable officer. In Miranda itself, the Court
talked about its concern with the coercive atmosphere of the police station.
However, a coercive atmosphere could exist anywhere, and the fact that a
suspect is questioned in a police station does not necessarily mean that he or
she is in custody for purposes of Miranda. Two contrasting cases illustrate
the point. First, in Orozco v. Texas,26 the Court held that the accused was in
custody when four officers questioned him in his own bedroom at 4 o’clock
in the morning. One of the officers testified that the accused was under
arrest at the time of the questioning, even though the officer did not tell
Orozco that he was under arrest.

On the other hand, in Oregon v. Mathiason,27 the Court held that a suspect
who met a policeman in an office in the police station was not in custody
for purposes of Miranda. The defendant was a parolee whom the officer
suspected of committing a burglary. The officer contacted Mathiason and
asked him to meet the officer at the police station. The officer told
Mathiason that he was not under arrest, and Mathiason was released after
confessing that he had committed the crime.

What Constitutes Interrogation for Purposes of

Miranda
When an officer has a suspect in custody and specifically asks him or her
direct questions about the incident under investigation, the officer is
engaged in interrogation within the meaning of the Miranda rule. But many
circumstances arise where there are serious questions about whether or not
the conduct of an officer amounts to such interrogation. For example, if
officers discuss matters pertaining to the case while transporting a suspect
to the station, it could cause the suspect to make a statement, especially if
the officers’ conversation plays upon some weakness of the accused. That
was the case in Rhode Island v. Innis,28 in which the Supreme Court of the
United States adopted a test for deciding whether an officer has engaged in
interrogation of a suspect in custody. The Court stated that interrogation as
used in Miranda refers to “either express questioning or its functional
equivalent.”29 Furthermore, the Court defined “functional equivalent” as
“any words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably
likely to elicit an incriminating response from the suspect.”30

ON THE JOB

A general rule of thumb will help the officer in the field clarify when
Miranda should be given:

Custody + Questioning = M i r and a + Waiver

Anytime an officer effectively places a suspect in custody and wishes to

question the suspect, the officer must read the Miranda warnings and
request a waiver in order to proceed with the questioning. A few exceptions
to the rule exist and will be discussed later in this chapter, but an officer
would be wise to apply this rule in almost all cases.

Page 241

In Rhode Island v. Innis,31 officers arrested the accused in connection with

the shotgun murder of a taxi driver. The weapon had not been recovered at
the time of the defendant’s arrest. Officers advised him of his Miranda
rights on more than one occasion, and the accused said he wanted to speak
to a lawyer. Officers then placed the defendant in a caged wagon in order to
transport him to the central police station. En route to the station, one of the
officers initiated a conversation with another officer concerning the missing
shotgun. He mentioned that a school for handicapped children was located
nearby and stated, “God forbid one of them might find a weapon with shells
and hurt themselves.”32 The other officer said nothing, but then the first
officer also said it would be too bad if a little girl “would pick up the gun,
maybe kill herself.”33 At that point, Innis interrupted the conversation and
led the officers to the weapon.

The Innis Court developed the test for interrogation in the context of
Miranda. If police engage in express questioning of a suspect, they have
engaged in interrogation. In addition, if the police engage in the functional
equivalent of express questioning, then interrogation has also occurred. The
Court defined the functional equivalent of express questioning as any words
or actions on the part of the police (other than those normally relating to
arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect. Applying that test to the
case before it, a majority of the Justices concluded that the officers’
statements did not amount to the functional equivalent of interrogation,
therefore affirming the defendant’s conviction.

According to the Innis Court, the Innis test focuses primarily upon the
perceptions of the suspect, rather than the intent of the police. This is
consistent with the basis of the Miranda rule—seeking to protect a suspect
in police custody from coercion. Thus, the Court emphasized the should
have known language of the rule, saying that officers are accountable only
for words or actions that they should have known were reasonably likely to
elicit an incriminating response from the suspect. However, in a footnote,
the Court cautioned that any knowledge that an officer may have
concerning the “unusual susceptibility of a defendant to a particular form of
persuasion”34 might be taken into account in determining what the officer
should have known would likely induce the suspect to speak.

An example of what the Court was likely referring to in Innis was involved
in the case of Brewer v. Williams.35 In that case, the police were
transporting a defendant who was in custody for the murder of a young girl.
The girl’s body had not been found and, during the trip, one of the officers
made a “Christian burial” speech. The officer made the speech, addressing
the accused as “Reverend,” knowing that the accused was a highly religious
person and had recently escaped from a mental hospital. The officer
testified at trial that, in giving the speech, he intended to provoke the
accused into revealing the location of the girl’s body.

Williams had appeared before a magistrate before being transported; thus,

the officer’s intentional attempt to elicit information from him was in
violation of Williams’ Sixth Amendment right to counsel. Therefore, in
Williams, the Supreme Court did not decide the case on Miranda grounds.
Rather, the Court held that the deliberate elicitation by the officer violated
Williams’ right to counsel under the Sixth Amendment. The point is that,
although the Innis test for interrogation is an objective one that focuses on
the perceptions of the suspect, the officer’s subjective intent may play a
role, as it did in Williams.

Page 242

What Constitutes a Valid Waiver of Miranda

Rights
In the Miranda decision, the Supreme Court stated that the prosecution has
a “heavy burden” of proof that any claimed waiver of rights by an accused
was made voluntarily, knowingly, and intelligently.36 Moreover, the Court
warned that “a valid waiver will not be presumed simply from the silence of
the accused after warnings are given or simply from the fact that a
confession was in fact obtained.”37 In cases after Miranda, the Court has
clarified these statements.

With respect to the “heavy burden,” the Court subsequently held that it is
met by the prosecution’s proof of the validity of a waiver by a
preponderance of the evidence.38 In making its evaluation of the conditions
under which the Miranda rights were waived, the Court has repeatedly
stated that it will consider all circumstances concerning the procurement of
the waiver, and that an oral or written statement of waiver is not conclusive
proof. The watchwords for officers and prosecutors are “Follow procedures
and be careful.”

Application Case

In North Carolina v. Butler,39 the defendant was convicted of kidnapping,

armed robbery, and felonious assault. At his trial, evidence of statements
Butler made to a Federal Bureau of Investigation (FBI) agent was
introduced against him. Prior to making the statements, Butler refused to
sign an “Advice of Rights” form containing, and waiving, the Miranda
warnings. When told his rights and asked if he understood them, he replied
that he did. Although he refused to sign the form, he did agree to speak with
the agents.
On appeal, the North Carolina Supreme Court reversed Butler’s conviction,
holding that he had refused to sign a waiver and had not made a specific
oral waiver. The case then went to the United States Supreme Court, which
disagreed with the North Carolina Supreme Court’s decision. The United
States Supreme Court held that, even in the absence of an express waiver
and under the “heavy burden” test of Miranda, a waiver could be inferred in
some cases based on the conduct of the accused, thereby reversing the
decision of the North Carolina Supreme Court.

In other cases, the Court has rendered decisions that illuminate its
interpretation of what constitutes a waiver. In one case,40 the Court held that
the fact that the accused thinks he is being questioned about one crime but
then is asked about another does not affect his waiver of the rights of
silence and counsel. In another case,41 the accused was in custody on a
murder charge when a lawyer called the police and said that she would act
as his attorney if the police were going to question him that night. The
attorney was told there would be no interrogation. Later that night,
however, the police gave the suspect his warnings, failing to mention
anything about the lawyer’s call. The accused waived his rights and made
incriminating statements. The Court held that the defendant’s waiver of his
Miranda rights was valid, even though he was not informed of the
attorney’s telephone call.

Page 243

Application Case

Berghuis v. Thompkins42 involved a contention that the defendant’s words

and acts were not sufficient to waive his Miranda right to remain silent. A
five-Justice majority rejected this contention, noting that waivers “can be
established even absent formal or express statements of waiver.” Defendant
was arrested as a suspect in a shooting murder. While in custody awaiting
transfer, two officers interrogated defendant for about three hours. At the
outset, the officers gave warnings and a form waiver, but defendant refused
to sign. During the interrogation, defendant remained largely silent but
never said he wanted to remain silent, giving a few limited verbal
responses. Two hours and 45 minutes into the interrogation, an officer
asked if defendant believed in God, whether he prayed, and if he prayed to
God to forgive him for the shooting. Defendant answered “yes” and this
statement was admitted at his murder trial.

In a different setting, in Salinas v. Texas,43 the Court considered

introduction into evidence of a suspect’s silence. Salinas came in
voluntarily for questioning about a murder. He was not in custody and he
answered questions until he was asked about whether he thought the shell
casings from the murder scene would match his shotgun. He did not answer
the question. The questioning then continued and he continued answering
other questions. At his subsequent trial for the murder, the fact of his silence
in response to the shotgun shell question was admitted against him and he
was convicted. A plurality of the Supreme Court (Justice Alito, joined by
Roberts and Kennedy) held that the admission of the fact of his silence did
not violate his rights. He was not entitled to Miranda warnings, since he
was not in custody. He did not invoke his Fifth Amendment right to remain
silent, and his remaining silent thus could be used against him. Two other
Justices (Thomas, joined by Scalia) agreed with the result on the grounds
that commenting on Salina’s silence caused him no penalty, unlike the
situation in Griffin v. California,44 which should not be extended to a
precustodial interview.

What Constitutes a Valid Waiver After a Suspect

Asserts His or Her Rights
In Miranda, the Court stated that, if a suspect, prior to or during
interrogation, indicates in any manner that “he wishes to remain silent, the
interrogation must cease.”45 Likewise, the Court said that, if an individual
says that “he wants an attorney, the interrogation must cease until an
attorney is present.”46 However, in subsequent cases, the Court established
two separate rules governing resumption of questioning—one dealing with
a defendant who had invoked the right to remain silent, the other dealing
with a defendant who had invoked the right to counsel.

In the first case, Michigan v. Mosley,47 the Court held that the “interrogation
must cease” language in Miranda does not mean that the police may never
resume questioning a suspect after he or she invokes the right to remain
silent. Rather, the Court concluded that statements made in response to
subsequent questioning will be admissible if the police “scrupulously
honored” the suspect’s right to cut off questioning. In this case, the
defendant was arrested in connection with recent robberies. The arresting
officer advised him of his Miranda rights, after which Mosley read and
signed the police department’s constitutional rights notification certificate.
The officer began questioning him. Mosley said he did not want to answer
any questions, and the officer promptly ceased the interrogation. More than
two hours later, a homicide detective took Mosley from the cell block to the
Homicide Bureau for questioning about a shooting, a crime distinct from
the robberies for which Mosley had invoked his right to silence. The
detective advised Mosley of his Miranda rights, and Mosley signed the
departmental form. At first, Mosley denied any participation in the killing,
but, when the detective falsely stated that another man had confessed to
participation in the crime and had named Mosley as the shooter, Mosley
made statements implicating himself in the homicide. The statements were
admitted against him at trial, and he was convicted of first-degree murder.

Page 244

The Supreme Court of the United States held that the admission in evidence
of Mosley’s incriminating statement did not violate the principles of
Miranda. In reaching this conclusion, the Court rejected the proposition that
police may never resume questioning after a suspect asserts the right to
remain silent; rather, the test of the admissibility of a statement made under
such circumstances is whether the police scrupulously honored the suspect’s
assertion of the right to remain silent.

On the other hand, in Edwards v. Arizona,48 the Supreme Court dealt with a
case in which a suspect in custody invoked his right to counsel, but the
police reinitiated contact with him the next morning and questioned him
without his attorney being present. The Court held that, even though the
police advised Edwards of his Miranda rights, and although he was willing
to talk, the police-initiated custodial interrogation without counsel present
violated Miranda. The Court thus created a stricter rule dealing with the
resumption of questioning by police after a suspect has invoked the right to
counsel than when a suspect invokes the right to remain silent. In very clear
language, the Court stated that law enforcement officials cannot further
interrogate a suspect who, being Mirandized, invokes the right to counsel,
“unless the accused himself initiates further communication, exchanges, or
conversations with the police.”49 In a subsequent case, the Court held that,
when a suspect, having invoked the right to counsel,50 has met with
counsel, police may not subsequently interrogate the suspect outside the
presence of counsel.

In Maryland v. Shatzer51 in 2010 a nearly unanimous Supreme Court

severely restricted the Edwards rule. Shatzer was in prison on a sex abuse
conviction when an officer came to question him about abuse of his own
3½-year-old son. Shatzer refused to speak without an attorney. Two years
and six months later, a different officer came to the defendant, who was still
in custody but in a different prison, to question him about the same abuse of
his son. The officer gave Shatzer warnings and, when he agreed to talk, he
made incriminating statements. Those statements were admitted against him
at his subsequent trial.

The Court held that Edwards did not require exclusion of the statements in
these circumstances. The Court reasoned that, when “a suspect has been
released from his pretrial custody” after a request for counsel and “has
returned to his normal life” for some time before a subsequent attempted
interrogation, there is little reason to think that his change of heart regarding
interrogation has been coerced. In Shatzer’s case, return to the general
prison population was a return to his normal life. The Court also adopted a
14-day limitation as a measure of the appropriate break in custody, thus
putting a time limit on the Edwards rule in general.

Page 245

Application Case

In Minnick v. Mississippi,52 a suspect in custody, after being warned that he

did not have to answer questions without a lawyer present, said, “Come
back Monday when I have a lawyer.” The FBI agents who were
interviewing him ended the interview. The suspect did consult with
appointed counsel and then, two days later, state law enforcement officers
came to see him. The suspect’s jailers told him he had “to talk” to the
officers and, even though the suspect refused to sign a waiver of rights
form, the officers questioned him. Statements he made at that time were
admitted against him at a state trial, and he was convicted of capital murder
and sentenced to death.

The United States Supreme Court reversed Minnick’s conviction. The Court
held that, merely because Minnick had consulted with an attorney,
Miranda’s right to counsel rule had not been satisfied under the Edwards
rule requiring that counsel be present during interrogation once the suspect
invokes the right to counsel.

Exceptions to the Miranda Rule

The Supreme Court of the United States has created three exceptions to the
requirement that a police officer give a suspect in custody Miranda
warnings before interrogating him or her: (1) the public safety exception,
(2) the routine booking question exception, and (3) the undercover police
questioner exception. By establishing these exceptions, the Court has
limited the fruit of the poisonous tree doctrine as applied to Miranda
violations and has created an impeachment exception to the exclusionary
rule as applied to such violations. Although the Court, in the Dickerson53
case, affirmed Miranda’s constitutional base, the Court has also reaffirmed
the vitality of the Court-created exceptions to the exclusionary rule and fruit
of the poisonous tree doctrine as applied to Miranda.54 The application of
the exclusionary rule and fruit of the poisonous tree doctrine to Miranda is
discussed more fully in the next section of this chapter.

The public safety exception holds that Miranda should not apply to a
situation in which police officers ask questions reasonably prompted by a
concern for the public safety. In the case establishing the exception, New
York v. Quarles,55 a police officer entered a supermarket in pursuit of a rape
suspect who was believed to be carrying a gun. When the officer spotted
and approached the accused, who matched the description of the assailant,
the officer ordered him to stop and put his hands over his head. With three
other officers present, the first officer frisked the defendant, finding an
empty shoulder holster. The officer then handcuffed the defendant and
asked him where the gun was. The defendant nodded in the direction of
some cartons and responded, “The gun is over there.” At trial, the trial court
excluded both the defendant’s statement and the gun because of the officer’s
failure to give the defendant Miranda warnings before questioning him
about the gun. The Supreme Court reversed this ruling, holding that, on the
facts of the case, there was a “public safety” exception to the requirements
of the Miranda rule. The Court further stated that the public safety
exception applies regardless of the officer’s motivation, as long as the
situation is one in which police officers ask questions reasonably prompted
by a concern for the public safety.

Page 246

The routine booking question exception was adopted by four Justices of the
Supreme Court of the United States in the case of Pennsylvania v.
Muniz.56 The Justices concluded that questions posed to an arrestee during
booking, such as those relating to name, address, weight, eye color, date of
birth, and age, are within a “routine booking question” exception, “which
exempts from Miranda’s coverage questions to secure the ‘biographical
data necessary to complete booking or pretrial services.’”57 Thus, even
though the accused is in custody and the answers are given in response to
direct questioning under Innis, the routine booking question exception
applies.

In Muniz, the United States Supreme Court addressed the question of

whether Miranda warnings must be given by a police officer to a person
who is in custody and suspected of driving under the influence of alcohol.
A police officer, who had reason to believe Muniz was operating his vehicle
while under the influence of alcohol, pursued the suspect, pulled him over,
and asked him to perform three field sobriety tests. Muniz performed these
tests poorly and stated that he did so because he had been drinking. The
officer placed Muniz under arrest and transported him to the county’s
central booking facility.

The booking facility, following standard practice, videotaped the ensuing

proceedings. Muniz was not at this time, or previously, advised of his
Miranda rights. The booking officer asked Muniz his name, address, height,
weight, eye color, date of birth, and current age. Muniz gave slurred
answers to these questions and could not give the date of his sixth birthday.
Muniz’s inability to make the calculation from his birth date to his sixth
birthday was incriminating, since it showed his mental faculties were
impaired. The officer then had Muniz perform the same sobriety tests that
he had performed on the roadside. He again performed them poorly. Muniz
next refused to take a breathalyzer test. At this point the officer gave Muniz
his Miranda warnings for the first time. Muniz waived his rights in writing
and admitted he had been driving while intoxicated. At trial, the videotape
was admitted in evidence against Muniz, as were the first officer’s
testimony describing Muniz’s performance on the sobriety tests and the
incriminating statements made by the defendant.

Muniz appealed his conviction, claiming the officers’ failure to give him his
Miranda warnings rendered the evidence of his subsequent acts and
statements unlawfully obtained and used against him. The Supreme Court
of the United States held that the slurred nature of his speech in response to
the questions and his physical responses to the sobriety tests at the booking
center were not testimonial and, therefore, did come within the Miranda
rule. Four Justices also agreed that the first seven questions asked by the
officer at the booking station regarding Muniz’s name, address, height,
weight, eye color, date of birth, and current age were not covered by
Miranda because they fell within a “routine booking question” exception to
the Miranda rule. The Court, however, viewed the question concerning the
defendant’s sixth birthday as involving “testimony.” As a result, the Court
held Miranda was violated and the evidence about the question and answer
should not have been admitted in the trial.

Miranda, by its terms, applies only to situations in which a suspect

perceives that he or she is in police custody and, from that perspective, is
subject to a police-dominated atmosphere that is coercive. When an
undercover police officer questions an accused, therefore, there is no
violation of Miranda. If the defendant does not believe that the person to
whom he or she is talking is a police officer, then there is no need for the
protection of the Miranda warnings. This is particularly the case when an
accused is incarcerated and the questions are asked by a cellmate. The fact
that the cellmate is an undercover law enforcement officer does not matter
for purposes of requiring Miranda warnings. It is important to note,
however, that, if the accused has made a court appearance or has been
indicted and the right to counsel has attached, any questioning by law
enforcement in the absence of counsel will violate the Sixth Amendment
right. This is so because the right to counsel under the Sixth Amendment
protects an accused more completely once formal charges have been
brought.

Page 247

Application Case

In Illinois v. Perkins,58 a prison inmate told the police he had learned about
a homicide from a fellow inmate. The police recognized the description of
the homicide as possibly being one under investigation. Consequently, the
police placed an undercover agent in the cellblock with the informant and
the defendant. The defendant was being held at that time for another crime
unrelated to the homicide. The undercover officer engaged the defendant in
a conversation about killing and asked the defendant if he had ever “done”
anybody. The officer did not give the defendant Miranda warnings before
the conversation. The Supreme Court of the United States held that the
statements were admissible against the defendant and did not violate the
requirements of Miranda. Although the accused was in custody, the Court
held that “an undercover law enforcement officer posing as a fellow inmate
need not give Miranda warnings to an incarcerated suspect before asking
questions that may elicit an incriminating response.”59

Some amount of deception in the form of a ploy to get a suspect to make

incriminating statements has been held by the United States Supreme Court
not to amount to sufficient coercion to violate either due process or
Miranda. For example, in Illinois v. Perkins,60 the Court approved a law
enforcement officer pretending to be a prison inmate to secure a statement
from a “fellow inmate.” The Court said that “ploys to mislead a suspect or
lull him into a false sense of security that do not rise to the level of
compulsion or coercion to speak are not within Miranda’s concerns.”61 In
Michigan v. Mosley,62 Mosley made incriminating statements to a homicide
detective after the detective stated falsely that an accomplice of Mosley’s
had confessed and implicated Mosley in the killing as the “shooter.” In
affirming Mosley’s conviction, the Court noted the false statement by the
detective but said nothing about it being improper. In contrast, the use of
deception in the Spano case63 was condemned by the Supreme Court as
being violative of due process. In that case, Spano’s friend, a police officer,
falsely stated that he would be in trouble if Spano did not confess.

Page 248

Miranda, the Exclusionary Rule, and the Fruit of

the Poisonous Tree Doctrine
When there is a violation of any constitutional provision relating to criminal
procedure, the evidence gained as a result of such violation may be
inadmissible at trial because of the exclusionary rule. This is the case with
respect to any confession that is obtained by coercion in violation of due
process. On the face of it, one would expect that the violation of the
Miranda rule would also lead to application of the exclusionary rule. This is
true, insofar as any statement taken in violation of Miranda is usually
inadmissible per the exclusionary rule applied to Miranda. Nonetheless, the
matter is a bit more complex than might otherwise appear. Although the
exclusionary rule will be discussed even more fully in the next chapter with
respect to violations of Fourth Amendment rights, some aspects of the
exclusionary rule as applied to violations relating to Miranda and related
rights must be discussed here.

The Miranda opinion, by its terms, seemed to be derived from the Fifth
Amendment privilege against self-incrimination. A few years after
Miranda, however, in the 1974 Supreme Court decision in the case of
Michigan v. Tucker,64 the Court developed the theory that a Miranda
violation is not actually a violation of a constitutional right. In Tucker, the
Court, in an opinion authored by then Justice Rehnquist, stated that
Miranda was a non-constitutional, prophylactic rule developed to prevent
violations of suspects’ rights against compelled incrimination. Under this
view, any statements obtained in violation of the Miranda rule were
inadmissible, but not because of an actual constitutional violation. The
Supreme Court’s decision in Dickerson v. United States,65 however, is
inconsistent with this view expressed in Tucker. The Court held in
Dickerson that Miranda was a constitutional decision.

But the view that Miranda is not constitutionally based, as expressed in

Tucker, gave rise to another effect—the impact on the fruit of the poisonous
tree doctrine when dealing with a Miranda violation. When there is a
violation of a defendant’s constitutional rights, in addition to the direct fruit
of the violation being inadmissible, any evidence derived from the violation
is also inadmissible under the fruit of the poisonous tree doctrine. For
example, consider a case where the police have actually coerced a
confession from a suspect and, in that confession, the suspect disclosed the
location of a gun used in the crime. The confession is inadmissible as the
direct “fruit” of the illegal government conduct, and the gun is inadmissible
as the derivative “fruit” of the illegality. The theory of the fruit of the
poisonous tree doctrine is that, if the root of the tree is poisoned, the fruit of
the tree is also poisoned. It is important to note that in some instances, the
case may have to be dropped if, without the inadmissible evidence, the case
against the accused is insufficient to support a conviction.

Application Case

In Michigan v. Tucker,66 the police failed to give the accused adequate

warnings, and his statements obtained in violation of Miranda were held
inadmissible at his trial. However, through the inadmissible statement, the
police found a witness, who was called to testify at Tucker’s trial. The
Court held that the statement itself was inadmissible because it violated the
Miranda rule but, since the Miranda rule is not constitutionally based and is
only a protective rule, the evidence derived from information in the illegally
obtained statement was admissible. The decision was based, in part, on the
fact that the derivative “evidence” was a live human being who, himself,
could decide whether or not to be a witness.

Page 249
In 1985, in Oregon v. Elstad,67 the Supreme Court reaffirmed the non-
constitutionality of the Miranda rule and the inapplicability of the fruit of
the poisonous tree doctrine to violations of Miranda where the statement
taken from an accused was not actually coerced and the statement of the
accused was his own voluntary “testimony.” In Elstad, two police officers
went to the home of the 18-year-old defendant with an arrest warrant for a
burglary charge. While one officer was in another room talking to the
defendant’s mother, the other officer spoke to the defendant in the living
room. The officer questioned the accused without advising him of his
Miranda rights. Elstad made an incriminating statement. The officers then
took Elstad to the sheriff’s headquarters, where, for the first time, they
advised him of his rights. Elstad waived his rights and signed a written
confession. The written confession was admitted against Elstad at trial, and
he was convicted of burglary.

The Supreme Court of the United States held that the first incriminating
statement’s inadmissibility because of the Miranda violation did not affect
the admissibility of the second statement. The Court specifically held that
“a suspect who has once responded to unwarned yet uncoercive questioning
is not thereby disabled from waiving his rights and confessing after he has
been given the requisite Miranda warnings.”68

The Dickerson decision, proclaiming the Miranda case as being a

constitutional decision, might well be considered as undermining the Tucker
and Elstad exceptions to the exclusionary rule and fruit of the poisonous
tree doctrine applicable to Miranda.69 The Court, however, in Dickerson
itself, noted that these cases (including the public safety exception case of
Quarles) “simply”

illustrate the principle … that no constitutional rule is immutable. No

court laying down a general rule can possibly foresee the various
circumstances in which counsel will seek to apply it, and the sort of
modifications represented by these cases are as much a normal part of
constitutional law as the original decision.70

As a result, it can be said at this time that, if there is a violation of Miranda,

any statement obtained in violation of Miranda will be excluded, but if that
statement leads to the discovery of other evidence, that derivative fruit of
the poisonous tree is not barred by the exclusionary rule applied to
Miranda. The Court made this point very clear in its decision in United
States v. Patane,71 decided in 2004. In Patane, a detective was provided
with information that a convicted felon illegally possessed a pistol. While
arresting the suspect, the officers attempted to advise him of his Miranda
rights, but the suspect interrupted, asserting that he knew his rights. The
suspect then revealed the location of a pistol in response to the officer’s
questioning. The Court allowed the pistol to be admitted into evidence,
despite the lack of Miranda warnings. The Court found that the introduction
of non-testimonial evidence obtained as a result of voluntary statements
does not violate a suspect’s constitutional rights, or Miranda, by negligent
or non-deliberate failures to provide full Miranda warnings. If the violation
of Miranda is deliberate, however, the subsequent statement, taken after the
giving of warnings, is inadmissible unless the police take “curative
measures” before the later statement is made, according to the Court’s
decision in Missouri v. Seibert.72

Page 250

Application Case

In the case of Missouri v. Seibert,73 the United States Supreme Court

considered the constitutional validity of a police procedure that some have
called the Missouri two-step. The police, following this procedure, would
interrogate a suspect without first giving Miranda warnings. If the suspect
confessed, then the officer or officers would give the suspect the required
warnings, secure a waiver, and then obtain a repeated incriminating
statement. The second statement would then be presented at the subsequent
trial of the accused.

With a 5-4 vote, the Court affirmed the opinion of the Missouri Supreme
Court that this procedure violated the defendant’s rights. Only four of the
five Justices voting in the majority, however, agreed on the test that
determined this outcome. Mr. Justice Kennedy, agreeing with the result in
the case, would have applied a narrower test than the other four Justices:
banning only those two-step interrogations that are deliberately calculated
to circumvent Miranda, not just those that had such a result regardless of
deliberation. Further, Justice Kennedy was of the view that, even where the
result is calculated, a warning between the two steps that explains the likely
inadmissibility of the pre-warned statement could be curative.

Finally, the Supreme Court created an impeachment exception to the rule

that excludes statements taken by the police in violation of Miranda. If a
defendant (1) takes the witness stand and (2) testifies untruthfully, the
prosecutor can use a statement obtained in violation of Miranda to impeach
the defendant’s testimony.74
Exclusion of Confessions Due to
Violation of the Sixth Amendment
Right to Counsel
Page 251

The right to counsel is one of the guarantees of the Sixth Amendment to the
United States Constitution. This fundamental right applies to the states through
the Due Process Clause of the Fourteenth Amendment. By its terms, a criminal
accused has a right to counsel for “his defense.” The Supreme Court of the United
States has held that the right attaches only at a critical stage of a prosecution,75
which means when adversarial judicial proceedings have been initiated, “whether
by way of formal charge, preliminary hearing, indictment, information, or
arraignment.”76 (Although in Escobedo, the Court relied on the right to counsel
when the accused had not yet been formally charged with a crime, that case has
been restricted narrowly to the facts of the case by the Court.)

Miranda protects a suspect’s right to counsel to aid the accused in preserving the
right to remain silent in a custodial arrest situation. The Sixth Amendment right to
counsel, after adversary criminal charges (formal charges) have been instituted, is
an entirely different matter.

In Massiah v. United States,77 the Supreme Court addressed the Sixth

Amendment right to counsel. The Court used the exclusionary rule as a means of
discouraging police misconduct in obtaining incriminating statements from
suspects. The thrust of the Supreme Court’s rulings in this area is that, if judicial
proceedings have been initiated against an accused, law enforcement officers
cannot deliberately elicit incriminating information from the accused without
defense counsel being present. To understand this rule more fully, the law
enforcement professional must explore when the rule applies, what constitutes
deliberate elicitation as opposed to interrogation, when and how an officer can
communicate with an accused after the right to counsel has attached, and how an
accused can waive the right to counsel. Figure 8–1 summarizes the constitutional
rights of an accused at different stages of the criminal justice process.
 FIGURE 8–1 Constitutional rights of an accused.

Application Case

In Massiah v. United States,78 the defendant had been indicted for violating
federal narcotics laws by transporting cocaine on a ship from South America to
the United States. The defendant had pleaded not guilty, had retained a lawyer,
and was released. Another man, Colson, was also charged in the indictment.
Colson agreed to cooperate with government agents in their continuing
investigation of the case. To that end, Colson allowed a radio transmitter to be
installed in his car. Colson and Massiah then had a lengthy conversation in the car
while it was parked on a New York street. A government agent in another car
monitored by radio the conversation between Colson and Massiah. Massiah made
several incriminating statements, which the agent repeated in his testimony at
Massiah’s trial. The defendant was convicted.

Page 252

The Supreme Court of the United States overturned Massiah’s conviction,

holding that he was denied the basic protections of the Sixth Amendment’s right
to counsel when “there was used against him at his trial evidence of his own
incriminating words, which federal agents had deliberately elicited from him after
he had been indicted and in the absence of counsel.”79
When the Right to Counsel Rule Applies
The Sixth Amendment right to counsel attaches when adversarial judicial
proceedings have commenced in a criminal case. Once the accused has obtained
and actually met with counsel, police conduct amounting to deliberate elicitation
of incriminating statements from the accused violates the accused’s right to
counsel. If the defendant, after commencement of adversarial proceedings but
before counsel has been retained or appointed, initiates conversation with the
police and waives Miranda rights, then the accused’s statements are not given in
violation of the right to counsel and are admissible at trial.80 Moreover, an
accused who has a right to counsel may waive that right, as is explained at the
end of this section.

What Constitutes Deliberate Elicitation Versus

Interrogation
Conducting a custodial interrogation without providing the suspect with the
warnings of the right to remain silent and the right to counsel is prohibited by
Miranda. The ruling in the Massiah case condemned deliberately eliciting
incriminating statements after counsel has been obtained and in the absence of
counsel. The test for interrogation for purposes of Miranda is set forth in the
Innis81 case. The Innis test to determine if an “interrogation” has taken place
focuses on the effect on the accused—whether, objectively, what the officer did
would likely result in the suspect providing incriminating information. The
“deliberate elicitation” test applicable to the Sixth Amendment right to counsel,
on the other hand, focuses on the subjective purpose of the officer. In other
words, deliberate elicitation occurs when the law enforcement officer acts with
the purpose of eliciting an incriminating response from a suspect after counsel has
been obtained or the adversarial proceeding has begun and counsel is not then and
there present.

There is a range of law enforcement activities that can come within the deliberate
elicitation language of Massiah. One such activity involves a government agent
directly seeking to elicit incriminating information, such as in the Massiah case.
Another example is an officer purposefully attempting to provoke an
incriminating statement, such as the Christian burial speech given by the officer
in the Williams case. Finally, there is the use of undercover agents, or plants, to
set up situations in which incriminating information is likely to be obtained. In all
of these situations, it is the fact that the government agents know their conduct is
likely to lead the accused to make an incriminating statement that causes the
statement to come within the definition of deliberate elicitation and thus be
inadmissible.

Page 253

Application Case

In United States v. Henry,82 the government planted a paid FBI informant in a jail
cell with the accused after the accused had been indicted. The informant was paid
on a contingent fee basis but was told not to initiate conversations with the
accused. The Supreme Court held that the statements reported by the informant
were inadmissible as violative of the Sixth Amendment right to counsel because
the government must have known that the informant’s presence would likely lead
to the incriminating statements. This case contrasts with the Perkins case
discussed in the Miranda section, in that the right to counsel under the Sixth
Amendment is more absolute than it is under the Miranda decision. After formal
charges have been initiated against a criminal defendant, no officer or agent of the
government may question the defendant without counsel being present.

When and How an Officer Can Communicate with an

Accused After the Right Attaches
After adversarial judicial proceedings have been initiated, any attempt by a law
enforcement professional to elicit incriminating information deliberately will
violate the right to counsel. In some cases, however, adversarial judicial
proceedings may have commenced against an accused but no attorney has been
hired or appointed. In such a situation, an officer can inform the accused of his or
her rights under Miranda and secure a valid waiver. If the accused does not ask to
exercise the right to counsel, then any incriminating statements obtained will not
be a violation of the Sixth Amendment right to counsel.83 Should the accused
request counsel but no counsel has been appointed, an officer may inform the
accused of his or her Miranda rights and secure a valid waiver.84 If an attorney
has been hired or appointed but the accused has not yet consulted with the
attorney, caution dictates that no communication with the accused be initiated by
law enforcement without counsel being present.
How an Accused Can Waive the Right to Counsel
A waiver of the right to counsel is possible in all situations where the accused is
informed of the right and makes a voluntary, knowing, and intelligent waiver of
that right. These principles were established in the 1938 Supreme Court decision
of Johnson v. Zerbst.85 By definition, there can be no waiver of the right to
counsel when the method of eliciting information is by an undercover or secret
agent—the accused would have no knowledge of the right to counsel and thus
could not waive it. In all other circumstances, an accused against whom
adversarial criminal proceedings have commenced is adequately informed of his
or her Sixth Amendment right to counsel when read the Miranda warnings. That
the Miranda warnings are sufficient to secure a valid Sixth Amendment waiver of
the right to counsel was specifically held to be so by the Supreme Court in
Patterson v. Illinois.86
Page 254

Confession Given After an

Unlawful Search and Seizure May
Be Excluded
The exclusionary rule and the fruit of the poisonous tree doctrine both apply
to the products of an unlawful search or seizure. Therefore, if a person
subjected to an unlawful search and seizure makes incriminating
statements, those statements are inadmissible under the exclusionary rule of
the Fourth Amendment. Such inadmissibility is unrelated to the Due
Process Clause, Miranda, or the Sixth Amendment right to counsel. The
fact that an officer gives Miranda warnings to such an accused (one who
has been subjected to an unlawful search and seizure), who then waives
those rights, does not automatically lead to the incriminating statements
being admissible.87 When a defendant confesses after an unlawful arrest, it
is possible for the statement and the fruit of the statement to be admissible
under the attenuation doctrine. This doctrine holds that, if evidence
resulting from illegal police conduct is sufficiently removed from the
primary illegality, the fruit of the poisonous tree doctrine need not apply.
Intervention of the free will of a person has been held to be sufficient to
attenuate the taint of the unlawful arrest. The attenuation doctrine is
discussed in detail in the next chapter.

Application Case

In Brown v. Illinois,88 the Supreme Court of the United States held that
incriminating statements made by Brown after an unlawful arrest were
inadmissible, even though Brown had been advised of his Miranda rights.
The Court held that the statements were the fruits of a poisonous tree, that
is, the unlawful arrest. The Court, however, stated that its decision in the
Brown case was a limited one. The United States Supreme Court did not
rule that all statements made after an unlawful arrest would be inadmissible,
but that if there were sufficient intervening circumstances to purge the taint
of the unlawful arrest, the statements could be admissible. The Supreme
Court disagreed with the Illinois Supreme Court. That court had held that
advising the accused of his Miranda rights always purged the taint of the
unlawful arrest, thereby making any incriminating statement by the accused
admissible.
The Continued Importance of
Confessions as Evidence
There are many technical rules that limit the admissibility in evidence of
incriminating statements. Nonetheless, such statements remain a critical
weapon in law enforcement’s arsenal in the war on crime. In fact, the
Miranda Court specifically pointed out that “confessions remain a proper
element in law enforcement,”89 and confessions continue to play a major
role in law enforcement.

Page 255
 Police officers are required to inform suspects of their Miranda
rights.

David R. Frazier Photolibrary, Inc

Many crimes are committed in which, even after the most clever,
intelligent, and scientific investigation has been conducted, practically no
evidence has been discovered to aid in determining the perpetrator’s
identity. Even when police investigation develops sufficient probable cause
to arrest, it is frequently difficult to develop evidence sufficient to attain a
conviction under the beyond a reasonable doubt standard. This is
particularly true in murder cases. In most cases, the murderer and the victim
are the only ones present at the time of the slaying, and frequently there is
little physical evidence at the scene except the dead victim. The killer often
disposes of the murder weapon miles from the scene. The identification of
the killer and a successful prosecution become very difficult. Frequently, it
is only through interrogations of persons connected to the victim, as well as
possible witnesses, that evidence sufficient to convict can be developed.

Given the important role of defendants’ statements in the prosecution of

criminal cases, the law enforcement professional cannot afford to conduct
interrogations that produce inadmissible evidence. It is incumbent upon the
law enforcement professional, therefore, to know the rules that determine
whether a suspect’s confession, admission, or incriminating statement will
be admissible at trial.
Page 256

Procedure for Introduction of

Confessions
A confession is usually introduced through the testimony of the officer to
whom it was made. If the defense attorney objects to a confession, a
preliminary inquiry will be held by the trial judge to determine
admissibility. Two equally valid procedures are used in the United States.
All questions relating to the admissibility of incriminating statements under
the Miranda decision, the Sixth Amendment right to counsel, and Fourth
Amendment search and seizure are questions of law and fact for the trial
judge to rule on. Questions relating to whether a confession was freely and
voluntarily made for purposes of due process may require different
treatment.

The states follow one of two procedures to determine whether a confession

was freely and voluntarily made—the orthodox procedure or the
Massachusetts procedure. Under the orthodox procedure, the trial judge
decides if, given the circumstances, the confession is voluntary. If it is, the
confession is introduced into evidence and the judge instructs the jury to
consider the confession along with all the other evidence presented. Under
the Massachusetts procedure, if the judge decides that the confession is
voluntary, the judge instructs the jury on the definition of voluntariness and
tells them to consider the confession as evidence only if they find that the
confession was voluntary.

Application Case

At one time, in many jurisdictions in the United States, the inquiry into the
voluntariness of a confession was heard by both the judge and the jury. If
the judge decided that the confession was involuntarily given, it would be
excluded. If there were some doubt about the voluntariness, the judge
would admit the confession and instruct the jury that it should decide the
issue. If the jury believed that the confession was involuntarily given, the
jury was instructed to disregard the confession. If the jury believed the
confession was voluntary, it was instructed to consider the confession as
evidence. This was known as the New York procedure.

In Jackson v. Denno,90 the United States Supreme Court held that the New
York procedure violated due process. The Court concluded that it is
unrealistic to expect a jury that hears a confession to disregard it, even if the
jury believes it to have been involuntary. Therefore, the Court concluded
that the jury that decides the guilt or innocence of an accused cannot decide,
in the first instance, the question of the voluntariness of a confession. The
Court thus proclaimed the procedure used in Jackson to be unconstitutional.
The Court did approve the continued use of the orthodox and Massachusetts
procedures, in which a clear-cut decision on the voluntariness question is
made preliminarily by a trial judge.

Page 257

Under both procedures, all that is necessary to challenge a confession is for

the defendant to object to its introduction at trial. During such an inquiry or
hearing, the burden is on the prosecution to prove that the confession was
properly obtained. The prosecuting attorney must present evidence, through
the testimony of witnesses, that the confession was voluntarily given and
that all the other rights and procedures were properly followed in obtaining
the confession. The judge must be convinced by a preponderance of the
evidence that the confession was lawfully obtained.91

At this inquiry, the defendant is permitted to offer evidence in an effort to

contradict the evidence presented by the prosecution. If the judge decides
that the confession was not properly obtained, the confession will be
excluded, and the trial will have to be conducted without the benefit of the
confession. If the judge concludes that the confession was properly
obtained, he or she will permit the confession to be introduced during the
trial.

If the defendant is convicted, the defendant may appeal, and the appellate
court will make an independent review concerning the manner in which the
confession was obtained. If the appellate court concludes from the record of
the case that the confession was improperly obtained, the conviction will be
reversed unless the prosecution can prove beyond a reasonable doubt that
evidence of the confession did not prejudice the outcome of the trial.92
Wording of Confessions
There is no prescribed wording for a statement or a confession. According
to its definition, a confession is an acknowledgment of guilt by one accused
of a crime. This acknowledgment may be merely an affirmative answer to a
question. In other words, an accused may be asked, “Did you kill Richard
Roe?” An answer of “Yes” would serve as a complete acknowledgment of
guilt and would be classified as a confession. Or the confession may be a
simple statement, such as “I killed Molly Brown with a hatchet.”

On the other hand, the confession may be a lengthy acknowledgment in

which the accused relates in detail every phase of the crime. This may
include the facts leading up to the commission of the act, the details of the
act itself, and the actions on the part of the accused after the commission of
the crime, such as the method of getaway, the disposal of the fruits of the
crime, or other related matters.

Although there is no requirement that a confession be in written form, from

an evidentiary standpoint, it is preferable that the confession be written and
signed by the accused. It is also advisable to record the process leading up
to the confession, as well as the confession itself.

The following warnings are standard under the Miranda decision:

You have the right to remain silent. If you talk about this case,
anything you say can and will be used against you. You have the right
to consult an attorney and to have your attorney present while you are
being questioned. If you cannot afford an attorney, one will be
provided for you without cost to you. Do you understand these rights?
Do you wish to speak to me?

Page 258

If the interrogation of the accused is recorded by an electronic device, each

question and each answer should be included at the outset of the
interrogation. If the interrogation is to be recorded by a stenographer and in
question-and-answer form, these questions and the answers should be
included at the beginning of the statements. If the interrogation is to be
written in a summary narrative form of statement, a preamble should be
included as the first paragraph of the statement of the accused. The
preamble should read in substance as follows:

I, (the name of the accused), make this voluntary statement to officer

(name of officer or officers conducting the interrogation). I make this
statement without threats or promises being made to me. I have been
advised of my right to remain silent. I have also been advised of my
right to consult an attorney and to have that attorney present during the
time that I am being questioned by the officer. I was also advised that,
if I could not afford an attorney, one would be provided for me free of
charge. I was advised that, if I did say anything, it could be used
against me in court. I wish to state that I understand my right to remain
silent and my right to an attorney, but I waive these rights and wish to
make the following statements to (officer’s name).

In addition to setting forth this preamble to the confession, it is suggested

that, as a concluding paragraph, the accused in his or her own handwriting
include a statement to this effect: “I have read the foregoing statement
consisting of (number) pages, and it is true and correct to the best of my
knowledge and belief.” The accused should then sign the confession in the
presence of witnesses other than the person to whom it was given. If the
accused cannot read, the written record of the confession should include a
notation that the confession was read to the accused and should set forth the
names of those present during the reading. Those persons present should
sign the statement acknowledging that the confession was read to the
accused in their presence and that the accused affirmed the statement.

If corrections are made in the confession, they should be made by the

accused in his or her own handwriting and initialed. The accused should
also initial each page of the statement if it consists of more than one page.
This will overcome any allegation on the part of the accused that other
pages that he or she had not seen were added to the confession.
The written confession may be in question-and-answer form, or it may be a
narrative of the accused’s statement. The question-and-answer form is
better, as it more truly reflects the exact statements of the accused.
Producing such a statement in written form is time-consuming and, without
stenographic assistance, it can become an arduous task. For that reason,
some officers prefer a narrative form of statement, which is a summary of
the facts as related by the accused. The difficulty with a narrative statement
is that it is too frequently in the officer’s words, not those of the accused. In
reading the statement, the jury may believe that the officer put words in the
mouth of the accused and that the statement was not, in fact, that of the
accused. With a recorder, there is little need to worry about stenographic
assistance at the time a confession is given, as the recording can be
transcribed and signed at a later time.

In reducing any confession to writing, the officer is faced with the problem
of including only those facts relevant to the crime for which the accused is
to be tried. If the written statement includes too many irrelevant details or
other incriminating evidence, the written confession may be objectionable
at the time of the trial and thereby be excluded.

Page 259

If a suspect is willing to talk freely about the case, as well as other matters,
and the interrogation is being recorded, the entire conversation should be
recorded. A second statement can then be obtained, including only those
matters relevant to the case at hand.
Confession Implicating a
Codefendant
Officers frequently encounter a situation in which a crime is committed by
two or more defendants and one defendant confesses to the crime,
implicating the other. The other defendant, however, refuses to make any
statement, much less to confess. In this situation, the principle of limited
admissibility, which would ordinarily solve the problem, will not apply.

Limited admissibility allows evidence admissible for one purpose but

inadmissible for another purpose to be introduced for the allowable
purpose. The jury is then instructed, at the time the evidence is admitted and
before deliberation, to disregard the evidence for the improper purpose.
Limited admissibility is a concept that is followed in all jurisdictions. FRE
105 states the doctrine of limited admissibility as it exists in a majority of
jurisdictions. However, in the case of one defendant incriminating a
codefendant, the United States Supreme Court concluded it is likely a jury
would not be able to disregard the facts about the other defendant.93
Introduction of the confession under those circumstances would violate the
Confrontation Clause rights of the codefendant who did not confess. The
possibility of such a violation increases when the confessing defendant does
not testify and cannot be cross-examined.

Various procedures have been suggested to overcome this problem. First,

the trial court can permit a joint trial of all the defendants if all parts of the
confession implicating any nonconfessing codefendants can be and are
effectively deleted (redacted) from the confession. This will work only if
the redaction does not still allow the jury to infer that the nonconfessing
codefendant is implicated in the confession. Second, the trial court may
grant separate trials if the prosecutor insists upon using the confession and
it appears that effective deletions cannot be made. If severance of the trials
is not judicially feasible and effective deletions cannot be made, the
confession must be excluded from evidence.
These rules create a problem for an officer in an interrogation of a suspect if
the interrogation is being electronically recorded. As stated earlier, it is
probably advisable to permit the suspect to talk freely of his or her
activities, as well as those of any associates, and thereafter either record a
second statement or have the statement taken down stenographically, so that
any necessary redaction can be accomplished without affecting the
statement’s worth to the prosecution.

This procedure may be done by merely having the suspect tell of his or her
own activities, admit to being one of those who committed the crime, and
not mention the names of others who participated in the crime. By deleting
the identity of the codefendants, the confession can be introduced during a
joint trial without prejudice to the codefendants. Otherwise, either the
confession may not be introduced or it will be necessary to have separate
trials. These rules are applicable even if the charge is one involving a
conspiracy. A conspiracy has ended by the time of the interrogation, and the
statements of a co-conspirator are not binding on the other conspirators
once the conspiracy has ended.
Page 260

Proof of the Crime in Addition to a

Confession—the Requirement of
Corpus Delicti
It is generally conceded in this country that a person cannot be convicted of
a crime upon an extrajudicial confession alone. There must be some proof
of the crime in addition to the acknowledgment of guilt by the accused—
some outside proof of the corpus delicti, that is, proof that a crime has been
committed. The amount of proof required is usually a prima facie showing
(some evidence on all elements). Moreover, circumstantial evidence
coupled with the confession itself may suffice. The proof of the corpus
delicti does not have to connect the confessor with the crime but merely
prove that a crime was committed.

The reason for the rule requiring additional proof of a crime beyond a
confession is deeply ingrained in Anglo-American jurisprudence. The best
interests of justice demand that we not convict persons who may be
innocent of a crime. Not infrequently, people who suffer from mental
instability confess to imaginary crimes or to real crimes for which the
unstable person is not responsible. For reasons of their own, people
sometimes confess to crimes committed by others.
Review and Application
Summary
1. An opposing party’s statement (admission) is any statement, verbal or
otherwise, made by a party that can be used in evidence against him or
her.

2. A confession is an admission of the crime itself. An opposing party’s

statement (admission) concerns only some specific fact that, in turn,
tends to establish guilt or some element of the offense.

3. A confession, to be usable as evidence, must be made freely and

voluntarily.

4. The test for voluntariness, according to the Supreme Court of the

United States, is the totality of the circumstances. Specifically, the test
is whether, under the totality of the circumstances, the defendant’s will
was overborne when the defendant confessed. Any conduct by law
enforcement officers that, under the totality of the circumstances,
could cause a reasonable person in the position of the accused to feel
coerced would violate these principles.

5. The requirements of the Miranda decision are that, before a criminal

suspect is subjected to custodial interrogation by a law enforcement
officer, the officer must advise the suspect that he or she has the right
to remain silent; that anything the suspect says can and will be used
against the suspect at trial; that the suspect has a right to an attorney
being present during questioning; and that, if the suspect cannot afford
an attorney, one can be provided at no cost to the suspect. After issuing
these warnings, the law enforcement officer must verify that the
suspect understands his or her rights and, before questioning the
suspect, the officer must secure an affirmative waiver of these rights
by the suspect.
 Page 261

6. Custody results when a police officer restrains a person in a manner

consistent with formal arrest, regardless of the situation or intent of the
officer.

7. Interrogation for purposes of Miranda consists of either express

questioning or its functional equivalent. The functional equivalent of
interrogation is any words or actions on the part of the police (other
than those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating response
from the suspect.

8. The Supreme Court has stated that the prosecution has a heavy burden
to prove that a suspect has waived his or her Miranda rights, but it has
set the burden of proof at a preponderance of the evidence.

9. Authorities cannot further interrogate a suspect who, being

Mirandized, invokes his or her right to counsel unless the accused
initiates further communication, exchanges, or conversations with the
police.

10. The three exceptions to the requirement of Miranda warnings are the
public safety exception, the routine booking question exception, and
the undercover police questioner exception.

11. The Sixth Amendment right to counsel attaches only at a critical stage
of a prosecution, which means when adversarial judicial proceedings
must have been initiated against the accused, whether by way of
formal charge, preliminary hearing, indictment, information, or
arraignment.

12. The rule governing police interrogation of a suspect when his or her
right to counsel has attached is that law enforcement officers cannot
deliberately elicit incriminating information from the accused without
defense counsel being present.
 13. Deliberate elicitation occurs when the law enforcement officer acts
with the purpose of eliciting an incriminating response from a suspect
after counsel has been obtained or the adversarial proceeding has
begun.

14. In Jackson v. Denno, the Court approved two procedures for

determining the admissibility of a confession at trial—the orthodox
and Massachusetts procedures. Under the orthodox procedure, the trial
judge decides whether the confession is voluntary, in which case the
confession is introduced into evidence and the judge instructs the jury
to consider the confession along with all the other evidence presented.
Under the Massachusetts procedure, if the judge decides that the
confession is voluntary, the judge instructs the jury as to the definition
of voluntariness and tells the jury to consider the confession as
evidence only if it finds that the confession was voluntary.

Page 262

Key Terms
opposing party’s statement (admission) 228

confession 228

implied, or adoptive, opposing party’s admission 230

prompt arraignment rule 232

Miranda warnings 233

totality of the circumstances 234

custodial interrogations 239

custody 239

interrogation 240
 public safety exception 245

routine booking question exception 246

exclusionary rule 248

fruit of the poisonous tree doctrine 248

impeachment exception 250

critical stage 251

deliberate elicitation 252

orthodox procedure 256

Massachusetts procedure 256

corpus delicti 260

Questions for Review

1. What is an opposing party’s statement (admission)?

2. How do confessions and opposing party’s statements (admissions)

differ?

3. What is the fundamental requirement for a confession to be usable as

evidence?

4. What is the test for voluntariness of a confession, according to the

Supreme Court of the United States?

5. What are the requirements of the Miranda decision?

6. What is the definition of custody for purposes of Miranda?

7. What is the definition of interrogation for purposes of Miranda?

 8. What is the burden of proof on the prosecution to prove a waiver of
Miranda rights by a suspect?

9. When may authorities resume interrogation of a suspect who has

invoked the right to counsel?

10. What are the three exceptions to the requirement of Miranda

warnings?

11. When does the Sixth Amendment right to counsel attach?

12. What is the rule governing police interrogation of a suspect when his
or her right to counsel has attached?

13. What constitutes deliberate elicitation for purposes of the Sixth

Amendment right to counsel?

14. What are the procedures approved by the United States Supreme Court
in Jackson v. Denno to determine the admissibility of a confession at
trial?

Workplace Applications
1. Your captain has asked you to write the department Miranda waiver
form to be used and signed by all persons who have been read their
Miranda rights, whether they have waived them or not. Prepare a form
using all of the required rights and questions. Remember to account for
persons who waive some of their rights and invoke others. Signature
and/or initial blanks should be made available for the officer, the
translators, and the suspect.

2. You have just arrested two suspected gang members for painting
graffiti—gang symbols—on the courthouse wall. They are in custody
and have invoked their Miranda right to silence. You decide to place
them in the same police car with a hidden tape recorder running to see
if they make any incriminating statements. The tape recording, made
while you were outside the car, reveals that the gang members
 discussed committing the crime and concocted an alibi to give to the
police. Have you interrogated the suspects or violated their rights?
Explain your answer fully.

Page 263

3. You have arrested a suspect in the kidnapping of a 6-year-old boy. The

suspect has waived his Miranda rights and has agreed to talk to you.
You know that the suspect’s accomplice has been found after
apparently killing herself. The kidnapping has received major nation-
wide media attention. Locating the child and returning him to safety is
your top priority. The suspect is denying any knowledge of the
kidnapping. You turn up the temperature of the interrogation room a
little and order that the suspect get warm drinking water and that his
meals be served cold. You lie to the suspect and tell him his
accomplice confessed to the kidnapping and said that she knew where
the boy was before the police killed her in a gun battle. However, you
truthfully tell the suspect that the boy has diabetes and, if he does not
get his insulin shot, he will die within 24 hours, adding charges of
murder to the kidnapping charges. Is this interrogation coercive? Why
or why not?

4. Late one night, a highway patrol officer observes a car with its right
tail light out. She follows the car, which is traveling very slowly, and
after a mile or so pulls it over. As the officer approaches the car, she
observes a driver and passenger; as she nears the driver’s side window,
she smells marijuana smoke. The driver’s reactions are very slow, and
both driver and passenger appear to be in an advanced stage of
intoxication. The officer orders them out of the car and, after
confirming that both are seriously physically impaired, she orders
them into the back of the cruiser. The officer calls for backup to secure
the car and, after the suspect’s car has been impounded, the officer
drives off toward the station. Along the way, the passenger perks up
enough to yell at the driver, “Man, why’d you throw that joint out of
the window? I paid $20 for that.” Upon making the statement, the
passenger seems to fade out. Does the officer have to stop and read the
 two suspects their Miranda warnings? Would the statement be
admissible in court? Why or why not?

Ethical Dilemmas
1. You respond to a robbery in progress call at a neighborhood park.
When you arrive, you find that a child has been shot to death in the
park, and some parents chased the fleeing suspect through the park and
captured him some distance from the crime scene. The suspect had
hidden the gun somewhere in the park before his capture. Concerned
about the safety of their children with the missing gun in the vicinity,
the parents beat the suspect until he confessed to the crime and
revealed the location of the missing gun. You arrive just in time to hear
the confession and are the only one who saw a fellow officer standing
back behind some bushes, watching the entire exchange between the
suspect and parents. Is this confession coerced? What do you do now?

Page 264

2. You are acting undercover as a fence dealing in stolen property. You

have an informant who knows you are a police officer and keeps you
supplied with information about criminal activities. You are after a
“rival” fence who has just been arraigned on 15 counts of receiving
stolen property. You casually mention the name of this defendant to
your informant but do not specifically ask for any information on him.
Several weeks later, the informant tells you several incriminating
statements that the defendant made to the informant. Have you
violated the defendant’s right to counsel? Explain your answer fully.

Endnotes
1. People v. Kelly, 157 Misc. 2d 554, 556, 598 N.Y.S.2d 423, 425 (Sup.
Ct. 1993), citing (Richardson on Evidence) § 540.

2. Gladden v. Unsworth, 396 F.2d 373, 376 (9th Cir. 1968), citing Jones
v. United States, 296 F.2d 398, 402 (1962).
 3. McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United
States, 354 U.S. 449 (1957).

4. 384 U.S. 436 (1966).

5. 322 U.S. 143 (1944).

6. 360 U.S. 315 (1959).

7. Gideon v. Wainwright, 372 U.S. 335 (1963).

8. Argersinger v. Hamlin, 407 U.S. 25 (1972).

9. 378 U.S. 478 (1964).

10. 377 U.S. 201 (1964).

11. 384 U.S. 436 (1966).

12. 530 U.S. 428 (2000).

13. The requirement that confessions be voluntary is predicated on a

complex of values. See Joshua Dressler, Understanding Criminal
Procedure § 22.02 (2), at p. 428 (8th ed. 2021) citing Blackburn v.
Alabama, 361 U.S. 199, 207 (1960).

14. Spano v. New York, 360 U.S. 315, 320 (1959).

15. See Culombe v. Connecticut, 367 U.S. 568, 606 (1961).

16. 479 U.S. 157 (1986).

17. 297 U.S. 278 (1936).

18. 322 U.S. 143 (1944).

19. See Joshua Dressler, Understanding Criminal Procedure § 22.02[B]

[34][d], at pp. 36–37 (7th ed. 2021).
20. 360 U.S. 315 (1959).

21. 384 U.S. 436 (1966).

22. Id. at 444.

23. Id.

24. 378 U.S. 478 (1964).

25. 564 U.S. 261 (2011).

26. 394 U.S. 324 (1969).

27. 429 U.S. 492 (1977).

28. 446 U.S. 291 (1980).

29. Id. at 300–301.

30. Id. footnote 6 omitted.

31. Id.

32. Id. at 294–95.

33. Id.

34. Id. at 302, n. 8.

35. 430 U.S. 387 (1987).

36. 384 U.S. 436, 444.

37. Id. at 475.

38. Colorado v. Connelly, 479 U.S. 157 (1986).

39. 441 U.S. 369 (1979).

40. Colorado v. Spring, 479 U.S. 564 (1987).

41. Moran v. Burbine, 475 U.S. 412 (1986).

42. 560 U.S. 370 (2010).

43. 570 U.S. 178 (2013).

44. 380 U.S. 609 (1965).

45. 384 U.S. 436, at 473–74.

46. Id. at 474.

47. 423 U.S. 96 (1975).

48. 451 U.S. 477 (1981).

49. Id. at 484–85.

50. Minnick v. Mississippi, 498 U.S. 146 (1990).

51. 559 U.S. 98 (2010).

52. 498 U.S. 146 (1990).

53. 530 U.S. 428 (2000).

54. Id. at 438–39.

55. 467 U.S. 649 (1984).

56. 496 U.S. 582 (1990).

57. Id. at 601.

58. 496 U.S. 292 (1990).

59. Id. at 300.

60. 496 U.S. 292 (1990).

61. Id. at 297.

62. 423 U.S. 96 (1975).

63. Spano v. New York, 360 U.S. 315 (1959).

64. 417 U.S. 433 (1974).

65. 530 U.S. 428 (2000).

66. 417 U.S. 433 (1974).

67. 470 U.S. 298 (1985).

Page 265

68. Id. at 318.

69. Joshua Dressler, Understanding Criminal Procedure § 24.06 [C][1], at

pp. 485–87 (8th ed. 2021).

70. Dickerson, 530 U.S. 428, at 441 (2000), as quoted in Dressler, Id. at §
24.11[A], p. 511 text accompanying n. 200.

71. 542 U.S. 630 (2004).

72. Missouri v. Seibert, 542 U.S. 600 (2004).

73. Id.

74. Harris v. New York, 401 U.S. 222 (1971).

75. United States v. Wade, 388 U.S. 218, 227 (1967).

76. Kirby v. Illinois, 406 U.S. 682, 689 (1972).

77. 377 U.S. 201 (1964).

 78. Id.

79. Id. at 206.

80. See Patterson v. Illinois, 487 U.S. 285 (1988).

81. Rhode Island v. Innis, 446 U.S. 291 (1980).

82. 447 U.S. 264 (1980).

83. Patterson v. Illinois, 487 U.S. 285 (1988).

84. Montejo v. Louisiana, 556 U.S. 778 (2009), overruling Michigan v.

Jackson, 475 U.S. 625 (1986).

85. 304 U.S. 458 (1938).

86. 487 U.S. 285 (1988).

87. See Brown v. Illinois, 422 U.S. 590, 603 (1975).

88. 422 U.S. 590 (1975).

89. 384 U.S. 436, 481 (1966).

90. 378 U.S. 368 (1964).

91. Lego v. Twomey, 404 U.S. 477 (1972).

92. See Arizona v. Fulminante, 499 U.S. 279 (1991).

93. Bruton v. United States, 391 U.S. 123 (1968).

Design Element: ©Ingram Publishing

Page 266

The Exclusionary Rule—Search

and Seizure
 Aaron Roeth Photography

Page 267

Chapter Outline

Introduction: What Is the Exclusionary Rule?

Development of the Exclusionary Rule and Its Exceptions

Philosophy of the Exclusionary Rule

The Scope of Searches and Seizures

What Is a Search?

The Reasonable Expectation of Privacy Test

The False Friend

Open Fields Doctrine and Curtilage

Technologically Enhanced Activities

Aerial Surveillance

Miscellaneous Matters Pertaining to Defining a Search

What Is a Seizure?

Ways of Making a Reasonable Search and Seizure

Search Pursuant to a Search Warrant

Definition of a Search Warrant

Grounds for Issuing a Search Warrant

Procedure to Obtain a Search Warrant

Particularity of Description of Property to Be Searched or Seized

Discovery of Other Property—the Plain View Doctrine

Night Service of a Warrant

“No-Knock” Warrants

Who May Serve a Warrant

Knock and Announce and the Use of Force in Execution of a

Warrant

Time Limit on Length of Search

Time Limit on Execution of Warrant: The Staleness Doctrine

Return of the Search Warrant

Attack on the Search Warrant

Reasonable Searches Without Warrant: Exceptions to the Warrant

Requirement

Search and Seizure Incident to a Lawful Arrest

The Vehicle Exception

 Inventory Searches

Consent Searches

Exigent Circumstances Searches and Seizures

Plain View Doctrine

Search and Seizure on Less Than Probable Cause: Stop and Frisk and
Reasonable Suspicion in Other Circumstances

The Permissible Scope of Stops

Extension of Frisks to Vehicles and Homes

Suspicionless Stops and Searches: The Special Needs Exception to the

Probable Cause and Warrant Requirements

Objecting to the Introduction of Evidence Claimed to Be Illegally

Seized

Standing

Motion to Suppress Evidence

Review and Application

Page 268

Chapter Objectives

This chapter explores the law of search and seizure, which stems from the
Fourth Amendment to the Constitution of the United States. The focus of
this chapter is the exclusionary rule. After reading this chapter, you will be
able to:

State the main purpose of the exclusionary rule.

Explain the two-pronged test for determining whether there is a search.

Identify the procedure and requirements for obtaining a valid search
warrant.

Explain the meaning of probable cause and possible ways of

establishing probable cause.

Discuss the requirements and limitations of a search incident to lawful

custodial arrest.

List the three ways in which a vehicle may be searched without a

warrant.

Identify two requirements for a valid consent.

Discuss the additional requirement for a valid consent if a third party is

giving consent.

Review those circumstances that have been recognized as exigent,

allowing an officer to search without a warrant.

State the elements that must be satisfied before an officer may seize an
object pursuant to the plain view doctrine.

Discuss the justification needed to conduct a stop and frisk.

Explain the standing requirement for a d­ efendant’s assertion of a

constitutional violation by law enforcement officers.
Introduction: What Is the
Exclusionary Rule?
The exclusionary rule is one of the simplest rules in the legal system. It
provides that illegally obtained evidence will be excluded from use in a
criminal trial. Generally speaking, this rule excludes the introduction of
evidence whenever police obtain the evidence in a manner that violates a
person’s constitutional rights. As a practical matter, the rights guaranteed by
the Fourth Amendment to the Constitution of the United States, freedom
from unreasonable searches and seizures, are most often involved when
evidence is excluded due to application of the exclusionary rule. However,
the exclusionary rule sometimes involves other constitutional guarantees.
The Sixth Amendment right to counsel, the Fifth Amendment privilege
against self-incrimination, and the Fifth and Fourteenth Amendments rights
to due process of law are all subject to violation, potentially triggering the
exclusionary rule. In addition, as discussed in Chapter 8, the protections
afforded by the Miranda decision,1 if violated, may result in the application
of the exclusionary rule and the suppression of evidence at trial. Thus, it
would perhaps be more accurate to refer to “exclusionary rules,” plural.
Nonetheless, the reference to the “­exclusionary rule,” singular, should be
taken to refer to the rule that excludes evidence in a criminal case because
of violations of any of a citizen’s rights.

The exclusionary rule is not truly a rule of evidence. Rules of evidence

were developed to regulate the flow of information presented in a
courtroom in order to find the historical facts of a legal dispute. At the same
time, the rules of evidence developed in part because of a mistrust of the
jury—a recognition that the jury has limitations with respect to what it can
hear without being improperly swayed. Thus, principles of trustworthiness,
reliability, and necessity came to bear in formulating the rules of evidence.
The exclusionary rule seeks to p­ romote a different value—to protect certain
constitutional rights of individual citizens or, as the S
­ upreme Court has said
in recent years, to deter unlawful police misconduct.
Page 269

The exclusionary rule is court-created and came into being early in the
twentieth century. In 1914, in Weeks v. United States,2 the United States
Supreme Court adopted the Fourth Amendment exclusionary rule for the
first time, but it was not until 1961 that the Court applied the rule in state
trials in the case of Mapp v. Ohio.3 In Mapp, the Supreme Court stated a
number of justifications for the exclusionary rule, including deterrence of
unlawful police conduct and the notion that the courts should not participate
in such illegality by allowing the fruits of it into evidence. The exclusionary
rule has been controversial from the outset, mostly because its result is
often that “the criminal is to go free because the constable has blundered.”4
As a result, the Supreme Court has interpreted the exclusionary rule in a
limited manner in recent years, stating that the only purpose of the rule is to
deter unlawful police conduct. Therefore, if a situation presents itself in
which a law enforcement officer has violated a constitutional mandate but
excluding the evidence would have no deterrent effect on the police, the
Court has found that the exclusionary rule does not apply or has proclaimed
an exception to it.

Development of the Exclusionary Rule and Its

Exceptions
At common law, the fact that evidence was illegally obtained did not
prevent it from being admitted in court against the accused. The rule was
that, if evidence was relevant to the case and aided in proving an issue at
trial, then the evidence should be admitted. The courts did not concern
themselves with how the e­ vidence was obtained. Moreover, the
exclusionary rule was at one time unique to the American system of justice.
The English legal system has yet to adopt an exclusionary rule, although
Canada does have such a rule.

Six years after the Weeks case announced the exclusionary rule, the case of ­
Silverthorne Lumber Co. v. United States5 was decided, and an additional
restriction was placed upon federal officers and the admissibility of
evidence. Silverthorne held that not only is illegally obtained evidence
inadmissible, but any other information derived from the illegal evidence is
also inadmissible. The fruit of the poisonous tree doctrine was thus
established. This doctrine has been reiterated many times over the decades,
and it continues to be asserted in recent decisions. According to the
doctrine, if the search itself is illegal, it is like a poisonous tree. Any
information gained as a result of such a search is also tainted by the illegal
search and is inadmissible against the defendant—it is poisonous fruit of a
poisonous tree. The exclusionary rule and the fruit of the poisonous tree
doctrine apply to evidence derived from violations of a person’s Fifth and
Sixth Amendment rights to the same extent that they apply to unlawful
searches and seizures that violate a person’s Fourth Amendment rights.

The Court in the Silverthorne case did not close the door on all information
that may be gained through an illegal search. The Silverthorne Court
established the independent source doctrine, which is one of three
exceptions to the fruit of the poisonous tree doctrine. If the prosecution can
show that the same information or knowledge was also gained through
another, independent source unrelated to the illegality, the information can
then be admissible through this source but not through the illegal search.
Since evidence admitted under this and the other two exceptions to the fruit
of the poisonous tree doctrine are also admitted into evidence
notwithstanding the exclusionary rule, one could say that these are also
exceptions to the exclusionary rule.

Page 270

ON THE JOB

The fruit of the poisonous tree doctrine works as follows. A murder suspect
is taken into custody and the arresting officer threatens the suspect with a
cocked gun, causing the suspect to confess to the murder, revealing where
the gun is hidden and leading the officer to the body. All this evidence
would be inadmissible in court because it is tainted by the officer having
coerced the suspect into confessing in violation of Fifth Amendment due
process. The confession would be direct fruit of the initial illegality, and the
gun and body would be derivative fruit of the initial illegality, that is, fruit
of the poisonous tree.
There are two other exceptions to the fruit of the poisonous tree doctrine:
the attenuation doctrine and the inevitable discovery doctrine. The
attenuation doctrine applies when the connection between the unlawful
conduct of the police and the discovery of the challenged evidence is so
unrelated as to dissipate the taint. The attenuation doctrine was most
famously stated and applied in the case of Wong Sun v. United States.6 In
this case, the police seized a man who told them that he had purchased
narcotics from the defendant. The seized man was not known to the police
beforehand and so was not a reliable informant. The police then went to the
defendant’s home and arrested him illegally, that is, without probable cause.
While being interrogated, the defendant refused to make any statements.
Two days after the defendant was released on bail, he voluntarily returned
to the police station and made incriminating statements to the police. The
Supreme Court found that the defendant’s statements were admissible
because the connection between the illegal arrest and the making of the
statements was so attenuated as to purge the statements of the primary
illegality. More specifically, the defendant’s voluntary act of returning to the
police station could not be attributable to any police misconduct. Therefore,
the illegal arrest had little or nothing to do with the defendant’s subsequent
incriminating statements.

In 2016, the United States Supreme Court applied the attenuation doctrine
in the case of Utah v. Strieff.7 In Strieff, an officer stopped a man without
any cause after the man exited a residence that the officer was surveilling
based on an anonymous tip that drug transactions were going on in the
house. The officer got Strieff’s identification and learned from a police
dispatcher that there was an outstanding warrant for his arrest on a traffic
violation. The officer arrested Strieff and found drugs and paraphernalia on
him. Strieff’s appeal from his conviction was affirmed by the United States
Supreme Court, which held that the discovery of a valid pre-existing and
untainted warrant attenuated the connection between the unconstitutional
investigatory stop of Strieff and the evidence seized.

Application Case

In Hudson v. Michigan,8 the United States Supreme Court decided that a

violation of the knock and announce requirement for police executing a
search warrant did not, in the circumstances, require exclusion of the
evidence seized as a result of the ensuing search. The officers waited only
three to five seconds after announcing before entering Hudson’s home. The
state conceded that this was a violation of the knock and announce rule, but
the Court concluded that the purpose of the knock and announce rule is to
protect life, limb, and property and this did not relate to the securing of the
evidence. In this sense, the seizure of the evidence was attenuated from the
violation of the rule, and the exclusion of the evidence was not an
appropriate remedy. Instead, the Court said, an appropriate remedy would
be a civil suit.

Page 271

Much like the independent source doctrine, the inevitable discovery

doctrine is a simple and straightforward legal concept. According to this
exception, the challenged evidence is admissible if the prosecution can
show that the evidence would have been inevitably discovered, even in the
absence of the police illegality. For example, in Nix v. Williams,9 the police
violated the defendant’s Sixth Amendment right to counsel. As a result of
the violation, the defendant made incriminating statements and was induced
to lead the police to the body of the murder victim. At the same time, search
teams were looking for the body and were within a few miles of its location.
The Supreme Court held that the evidence related to the discovery of the
body of the murder victim was admissible despite the violation of the
defendant’s rights. The Court stated:10

If the prosecution can establish by a preponderance of the evidence

that the information ultimately or inevitably would have been
discovered by lawful means—here the volunteers’ search—then the
deterrence rationale has so little basis that the evidence should be
received. Anything less would reject logic, experience, and common
sense.

Similarly, if the police had unlawfully searched the defendant’s house and
obtained the information regarding the location of the body from the
defendant’s personal diary, then the result would have been the same. The
search teams were already on their way to discovering the body, and the
information acquired from the diary pursuant to the unlawful search would
have made no difference.

Before 1960, state officers who obtained evidence illegally could hand it
over to federal officers for prosecution in federal court. This was known as
the silver platter doctrine. The silver platter doctrine ended with the 1960
United States S­ upreme Court case of Elkins v. United States.11 There, the
Court held that ­evidence illegally obtained by a state officer was
inadmissible in a federal prosecution. The test now requires that evidence
obtained unlawfully by a state officer be treated the same as if it had been
obtained in a similar manner by a federal officer.

Keep in mind that the exclusionary rules initially were applicable only to
federal officers. The states were still free to establish their own procedures
regarding searches, seizures, and admissibility of evidence without
interference from the federal courts. Many states did not see fit to adopt the
exclusionary rule until the Court rendered its decision in Mapp in 1961,
making the Fourth Amendment exclusionary rule applicable to the states
through the Due Process Clause provisions of the Fourteenth Amendment.
The Court in Mapp stated, “We hold that all evidence obtained by searches
and seizures in violation of the Constitution is, by that same authority,
inadmissible in a state court.”12

Page 272

In the Mapp case, Dollree Mapp was convicted for having obscene
materials in her possession, a conviction that was affirmed by the Ohio
Supreme Court and appealed to the United States Supreme Court. Acting
upon information that a suspect in a bombing case was hiding in the home
of Ms. Mapp and that policy paraphernalia (material connected with illegal
betting activities) was hidden there, the city police went to Ms. Mapp’s
home and asked permission to search it. Ms. Mapp called her attorney and
then refused to admit the officers unless they had a search warrant. The
officers left but returned later and again sought admittance.

When Ms. Mapp failed to come to the door, the officers broke the outer
door to the residence and started up the stairs to her residence, where they
were met by Ms. Mapp. She asked to see their search warrant. One of the
officers displayed a paper purporting to be a search warrant. Ms. Mapp
grabbed the paper and tried to stuff it in her brassiere. A scuffle ensued, and
the paper was retrieved by one of the officers. The officers then searched
Ms. Mapp’s apartment and found the obscene material that brought about
her conviction. No “search warrant” was ever produced at trial. The United
States Supreme Court held that this invasion of Ms. Mapp’s residence and
the subsequent search were unreasonable and therefore violated the Fourth
Amendment to the Constitution. Moreover, the Court declared the
exclusionary rule to be an essential part of both the Fourth and Fourteenth
Amendments, thereby reversing Ms. Mapp’s conviction. With that
conclusion, the Supreme Court adopted a new philosophy, which caused the
exclusionary rule to become the standard in all states.

Philosophy of the Exclusionary Rule

The Mapp Court gave a number of rationales for its decision. The first and
most significant rationale, or justification, is the deterrence rationale. To
deter police officers from disregarding the Constitution, it is necessary to
exclude from evidence at trial the evidentiary fruits of illegal police
conduct. Additionally, the Court stated that the need to maintain judicial
integrity justifies the application of the exclusionary rule to the state—
judges cannot be accomplices to illegality by allowing the introduction of
illegally obtained evidence. In recent years, as the composition of the Court
has changed, and under the leadership of Chief Justices Burger, Rehnquist,
and Roberts, only the deterrence rationale has survived. As a result, the
Court has been able to fashion a number of exceptions to the exclusionary
rule and the fruit of the poisonous tree doctrine. These exceptions have
blunted somewhat the exclusionary rule’s adverse effect of letting the
criminal go free to prey upon society again because the officer blundered.
In addition to the independent source, attenuation, and inevitable discovery
doctrines already discussed as exceptions to the fruit of the poisonous tree
doctrine, the Court has fashioned two exceptions to the exclusionary rule:
the good faith and ­impeachment exceptions.

In United States v. Leon,13 the Court established the “good faith” exception
to the Fourth Amendment exclusionary rule. In Leon, police officers
executed a warrant under a good faith belief that the warrant was supported
by probable cause. But, as it later turned out, the warrant was invalid for
lack of p­ robable cause. If the Supreme Court were to adhere to its prior
decision in Mapp, the evidence seized by the officers in Leon would be held
inadmissible. The Supreme Court, contrary to precedent, allowed the
evidence to be introduced, by holding that “in the absence of an allegation
that the magistrate abandoned his detached and neutral role, [exclusion of
evidence] is appropriate only if the officers were dishonest or reckless in
preparing their affidavit or could not have harbored an objectively
reasonable belief in the existence of probable cause.”14 The good faith
exception to the exclusionary rule applies only to cases involving warrants.

Page 273

As elaborated by the Court, the essential test for the good faith exception
exists when an officer, in executing a search warrant, has an objectively
reasonable belief that the warrant is valid. The evidence may then be
admissible at trial even if there is some technical defect in the warrant.
However, when a reasonably well-trained officer should realize that a
search warrant is invalid, the good faith exception does not apply.

In short, Leon’s good faith exception applies when the illegality is due to
the conduct of the magistrate, not the law enforcement officer. Consistent
with the overriding deterrent rationale of the Supreme Court, correcting
magistrates’ mistakes by applying the exclusionary rule will not yield any
deterrence of law enforcement misconduct.

Criticism of the good faith exception is at least twofold. First, by exempting

erring magistrates from the exclusionary rule, the Court may be
encouraging magistrates to rubber-stamp police warrant applications and to
be generally sloppy in the judicial review function. Second, the way the
good faith exception works is logically questionable. The test for probable
cause assumes a reasonable officer’s view that the search or seizure is
justified. If a magistrate approves a warrant that lacks such reasonable
support, how can it be said that “a reasonably well-trained” officer would
have believed in the validity of the warrant? The dissenters in Leon pointed
out this logical inconsistency, but to no avail.
Notwithstanding some controversy over the good faith exception, including
the fact that some states have rejected it,15 one must bear in mind that the
exception only applies to warrant cases and other limited circumstances,
such as statutory authorization later found unlawful.16 Generally, law
enforcement action taken without a warrant is not subject to the exception,
even though arguments for such application can be made. Hence, the
exception applies to a relatively “small class of cases.”17 The United States
Supreme Court has extended the good faith exception to three other
circumstances: (1) seizures made in reasonable ­reliance on erroneous
computer records indicating the existence of a warrant where the error was ­-
attributable to a judicial branch employee (Arizona v. Evans);18 (2) similar ­-
reliance on erroneous computer records by a county warrant clerk working
in the sheriff’s department who checked with his or her counterpart in a
neighboring county (­Herring v. United States);19 and (3) reliance on
“objectively reasonable reliance on binding appellate precedent” that was
subsequently overruled (Davis v. United States).20 In the computer records
and state statute cases, the Court found that no deterrent effect of police
misconduct was involved because the errors were made by judicial
personnel in one case and the legislature in another. In the most recent
computer records case, Herring v. United States, the error was made by an
employee of a law enforcement department, the county sheriff. Nonetheless,
the Court found that the error was merely one of negligent conduct by a
clerk, not flagrant misconduct by arresting officers, and, applying a cost-
benefit analysis, a majority refused to apply the exclusionary rule.21 In the
reliance on binding appellate precedent case, Davis v. United States, officers
searched a vehicle incident to the arrest of recent occupants. At the time,
extant Eleventh Circuit precedent interpreting New York v. Belton
authorized that vehicle search. Two years later, the Supreme Court decided
Arizona v. Gant, which interpreted Belton narrowly, thereby restricting the
scope of vehicle searches incident to arrest. (Both Belton and Gant are fully
discussed later in this chapter.) Relying on prior good-faith exception
decisions, the majority decided that, when officers rely upon binding
appellate precedent authorizing a search, the deterrent premises of the
exclusionary rule and the balance of costs and benefits dictate the admission
of any evidence obtained.

Page 274
Application Case

In Maryland v. Garrison,22 the Supreme Court addressed the issue of the

good faith of officers who executed a warrant that was later found to be
deficient because it was overbroad. Police obtained a warrant to search the
third-floor apartment of a person named McWebb. It was unknown at the
time that the third floor had more than one apartment. The officers
discovered paraphernalia in the Garrison apartment, which was not included
in the warrant. The officers, although they didn’t know it, were in the wrong
apartment, and they seized items they weren’t even looking for!
Nonetheless, the Supreme Court found the search valid. The Court
determined that a reasonable police officer, based on the information
available at the time of execution of the warrant, would have believed he or
she was executing (conducting) a valid search. Accordingly, the search was
reasonable because the officers executed the search warrant under a good
faith, though mistaken, belief that they were acting within the scope of the
warrant.

Application Case

In Groh v. Ramirez,23 a federal agent prepared and signed an application for

a warrant to search Ramirez’s ranch. The application included an affidavit
stating that the agent believed that certain specific weapons, explosives, and
records were on the ranch. The agent gave the magistrate a completed
warrant form, but it did not list any of the specific property to be seized.
The magistrate failed to notice that the warrant was defective and signed it.
When the warrant was executed, none of the items sought were found.
Ramirez brought suit for violation of his Fourth Amendment rights. The
Supreme Court held that the warrant was patently invalid in that it failed
altogether to comply with the particularity requirement of the Fourth
Amendment. Had any property been located and seized, it would not have
been admissible in any trial against Ramirez, and the Leon good faith
exception would not have applied.

Page 275
Another exception to the exclusionary rule is the impeachment exception.
This exception allows the prosecution to use evidence illegally seized from
the accused in violation of his or her Fourth Amendment or Fifth
Amendment Miranda rights for the limited purpose of impeaching the
accused during direct examination or cross-examination. This exception is
justified on the grounds that the use of illegally seized evidence to impeach
a defendant’s false testimony aids in the determination of truth. In addition,
this exception is consistent with the deterrent rationale underlying the
exclusionary rule in that it is unlikely that officers will be encouraged to
violate the Fourth or Fifth Amendments in the hopes of gaining evidence
for impeachment purposes.
The Scope of Searches and Seizures
The Fourth Amendment prohibits unreasonable searches and seizures and
provides that no warrants for a search or a seizure shall be issued without
probable cause. One generally thinks of searches and seizures in connection
with obtaining physical evidence, but they also pertain to the receipt of
information through wiretaps, recording devices, inspection of papers, and
even conversations. Thus, the search for and seizure of evidence are not
confined to physical, tangible objects. The objects of a search or seizure
may be the fruits of a crime, the materials used in a crime, the evidence of a
crime, weapons, contraband, or a person. Whether the information or
objects looked for (searched) and taken (seized) may be used as evidence in
a judicial proceeding depends entirely upon whether the search for and the
seizure of the evidence were reasonable or unreasonable.

Although people have a tendency to use the term “search and seizure” as if
it were one act, legally and technically, this is incorrect. A search is one act
and a seizure is another; it is possible to conduct a search and not make a
seizure, or there may be a seizure without a search. It is quite possible to
have authority to search but not to seize, or authority to seize but not to
search.

The legality of a seizure of an object is usually dependent upon the legality

of the search, but an illegal seizure may stem from a legal search. This is
particularly true when things are taken other than those described in a
search warrant. An illegal search may follow a lawful seizure, such as when
an automobile is stopped (seized) because of a traffic violation but then,
without probable cause to search, an officer searches the vehicle and finds
contraband.
What Is a Search?
There was a time when a search required a physical intrusion—a trespass.
According to this definition, police officers were required to step into a person’s
home, or other constitutionally protected area, in order to observe something. A
person was deemed to have Fourth Amendment protection in his or her home or
other areas in which the person had a property interest. If the police physically
intruded onto such property, even in the slightest way, then a search occurred. The
United States Supreme Court’s 1967 decision, in Katz v. United States,24
dramatically changed the meaning of “search” in Fourth Amendment
jurisprudence. The Katz ruling allowed a search to occur without a physical entry.

Page 276

Katz was convicted of transmitting wagers in interstate commerce through the use
of a pay telephone booth. The telephone booth was completely enclosed, a type
that is rarely seen in modern times. Federal Bureau of Investigation (FBI) agents
had attached an electronic listening device to the booth and recorded Katz’s
conversations. The recordings were used as evidence at trial. On appeal, Katz
contended that there had been an unreasonable seizure of his conversations, since
his privacy had been invaded. The United States Supreme Court upheld Katz’s
claim and reversed the conviction. The Court stated:25

The Fourth Amendment protects people, not places. What a person

knowingly exposes to the public, even in his own home or office, is not a
subject of Fourth Amendment protection. … But what he seeks to preserve
as private, even in an area accessible to the public, may be constitutionally
protected. …

It is true that the absence of penetration was at one time thought to foreclose
further Fourth Amendment inquiry … for that Amendment was thought to
limit only searches and seizures of tangible property. … But “the premise
that property interests control the right of the Government to search and
seize has been discredited. …” We have expressly held that the Fourth
Amendment governs not only the seizure of tangible items, but extends as
well to the recording of oral statements overheard without any “technical
trespass under … local property law.” … Once this much is acknowledged,
and once it is recognized that the Fourth Amendment protects people—and
 not simply “areas”—against unreasonable searches and seizures, it becomes
clear that the reach of that Amendment cannot turn upon the presence or
absence of a physical intrusion into any given enclosure. (Emphasis added.)

Katz recognized for the first time that Fourth Amendment protections extend to
intangibles, including conversations. Equally significant, the language of the
decision recognizes it is a person’s expectation of privacy that establishes the
protection, even in a public environment. On the other hand, what a person
exposes to public view, even if the person believes it to be private, is not within
the Fourth Amendment’s protection.

With respect to the meaning of the language quoted previously, note that,
whenever a person exposes activities or objects to public view, there is no search
if an officer perceives the activity or object from a lawful vantage point when
making the observation. Thus, in Katz, the officers’ observations of Katz in the
glass-enclosed telephone booth were not searches. The Fourth Amendment was
not triggered by the officers’ conduct in viewing Katz from the public street. The
theory upon which this conclusion is based is that anything in open or plain view,
that anyone can perceive by one of the five senses, is not subject to Fourth
Amendment protection. The officers’ conduct in wiretapping Katz’s
conversations went beyond what Katz had exposed to the public and, therefore,
constituted a search.

Application Case

Observation of activities from a lawful vantage point is not limited to the sense of
sight but extends to all the senses. In Minnesota v. Dickerson,26 an officer
conducting a lawful patdown felt a small lump in the front pocket of the suspect’s
jacket. The officer continued to feel the object further and determined that it was
crack cocaine, which he seized. Although the Court held that the ­seizure of the
cocaine was unlawful for reasons that will be discussed later in this chapter, the
Court said that, under certain circumstances, the observation of an object through
the sense of touch is not a search—thereby recognizing the “plain touch”
doctrine.

Page 277

The Reasonable Expectation of Privacy Test

In a concurring opinion in Katz, one consistent with the majority’s opinion on the
meaning of the Fourth Amendment, Justice John Marshall Harlan stated a two-
pronged test for determining whether a search has occurred. In the years
following the Katz decision, the Supreme Court chose Harlan’s test to decide
whether, in any given case, a search has occurred. The test examines whether

1. the person alleging that a search occurred has exhibited an actual, subjective
expectation of privacy in the place searched; and

2. the person’s expectation is one that society is prepared to recognize as -­

reasonable or legitimate.

If both conditions are present, then there is a search.

This test contains both a subjective prong and an objective prong. There is some
question as to whether the subjective prong (number 1 in the list) is necessary or
appropriate, and, in many cases, the subjective prong is assumed to exist even if it
is not clear that the citizen truly expected privacy. In any event, the significant
aspect of the test is whether a person claiming a violation of his or her Fourth
Amendment rights can be said to have a personal, reasonable expectation of
privacy measured by objective standards.

There are a number of recurring scenarios involving search issues that the -­
Supreme Court has addressed in the context of a reasonable expectation of
privacy. Those scenarios are the false friend, open fields, technologically
enhanced activities, and aerial surveillance.

The False Friend

Prior to Katz, the Supreme Court had held that, when a paid government
informant insinuated himself or herself into the confidence of a suspect and
reported to the government statements made by that suspect, the suspect’s Fourth
Amendment rights were not violated. In the early 1960s, a government informant
was present at a number of meetings between Jimmy Hoffa, who was on trial for
perjury, and his attorney. The informant was invited into the meetings during
which Hoffa talked freely about his actions. The informant relayed to the FBI
what Hoffa had said, and that information helped lead to Hoffa’s subsequent
indictment and conviction of attempting to bribe a juror. Hoffa then appealed to
the United States Supreme Court.
Page 278

In Hoffa v. United States,27 the Court relied upon an “assumption of the risk”
theory to conclude that there was no search in this situation. What a person
willingly reveals to another on the assumption that the other is a friend is thereby
revealed to the world if the so-called friend turns out to be no friend at all. This is
known as the false friend doctrine.

After Katz, the Supreme Court reaffirmed the false friend principle in
United States v. White.28 The “expectation of privacy” terminology from Katz
was used by the Court to say that a citizen does not have a reasonable expectation
that a person with whom he or she is conversing will not then or later reveal the
conversation to the police. The difference between White and Hoffa was that the
false friend in White was wired and, while the conversations were taking place,
they were transmitted to an officer nearby. The White Court did not find this
difference significant enough to warrant a different result and declared that no
search had occurred.

However, in Carpenter v. United States,29 the Court held that a phone company
handing over transactional records to the government, including the date and time
of calls, and the approximate location where calls began and ended, did not fall
within the false friend doctrine. Although, when an individual places a phone call
he or she voluntarily gives the phone company the approximate global
positioning system (GPS) location and thus assumes the risk of what the company
may do with that information, there is nonetheless a reasonable expectation of
privacy in such an intrusive type of information. Thus, a search warrant is needed
to gain such information.

Open Fields Doctrine and Curtilage

Prior to Katz, the Supreme Court had declared that entry into “open fields” did
not constitute a search under the Fourth Amendment in Hester v. United States.30

This principle was reaffirmed in Oliver v. United States,31 when federal officers
had gone past “No Trespassing” signs onto private property where they saw
marijuana growing. The marijuana was growing in fields that were not visible
unless one entered the private property. The officers walked around a gate and
through a private woods in two separate instances. The Court concluded, under
the open fields doctrine, that people do not have a legitimate expectation of
privacy in open fields, even if law enforcement officers trespass upon private
property in order to observe the open fields. The main justification for this
conclusion is that open fields do not provide the setting for those intimate
activities that the Fourth Amendment is intended to shelter from government
intrusion or surveillance.

In Oliver, the Court distinguished open fields from the curtilage, i.e., the land
immediately surrounding and associated with a home. A citizen’s activities in the
open fields, unlike those usually conducted within the curtilage, are not entitled to
Fourth Amendment protection. Thus, whereas an individual would expect that
there would be no warrantless entry into the curtilage by officers, the same
expectation is not justified with respect to open fields.

In Collins v. Virginia,32 the United States Supreme Court, in a near-unanimous

decision, found the Fourth Amendment’s warrant requirement for searches
applied to a police officer’s invasion of curtilage of a home for a warrantless
search of a motorcycle covered by a tarp and parked in a partially enclosed top
portion of a driveway of the home.

Page 279
 The Supreme Court has held that, if the government gains information
that a citizen has knowingly exposed to the public, the use of enhanced
surveillance techniques does not violate the Fourth Amendment
protections. Recent decisions by the Court have narrowed this principle
when applied to extended surveillance and digital data contained in cell
phones and the like.

Ira Wyman/Getty Images

Technologically Enhanced Activities

The use of technology to enhance criminal investigations presents a wide variety
of issues under the Fourth Amendment. While pointing a flashlight at night to
illuminate an area open to public view does not trigger Fourth Amendment issues,
there are a variety of devices that could lead to such issues, ranging from
parabolic microphones to electronic and wireless tracking devices. The Supreme
Court has decided a number cases in this area, holding that, if the government
gains information that the citizen has knowingly exposed to the public, then the
use of an enhancement device will not violate the Fourth Amendment.

First, in Smith v. Maryland,33 the Court found that the installation and use of a
pen register (a device that records the numbers dialed by a telephone) by the
telephone company was not a search under the Fourth Amendment. The Court
distinguished this case from Katz on the ground that, instead of learning of the
contents of a telephone conversation, the government in Smith learned only
the numbers called. But pivotal to the Court’s decision was the fact that telephone
users were well aware that they were sending the numbers dialed to the telephone
company. Thus, like the false friend situation, the Court reasoned that the tele­-
phone user has no reasonable expectation of privacy in information turned over to
a third ­person—in this instance, the telephone company.

The “third-party” doctrine had its roots in United States v Miller,34 where federal
agents subpoenaed two banks and received all of Miller’s bank records. As a
result, Miller was indicted for tax fraud. The United States Supreme Court had
held, three years before Smith, that bank customers do not have a reasonable
expectation of privacy in their bank records because they voluntarily give
information contained in the records to the bank and such records are observable
by the bank’s employees. An individual who volunteers information to a third
party assumes the risk that the third party is not going to hand over the
information to the government. And, remember, in Carpenter v. United States, the
Court declined to extend the third-party doctrine to cell-site location information.
The Court reasoned the level of intrusiveness in extensive cell-site data gathered
over 120 days, giving an individual’s approximate GPS location weighed against
the application of the third-party doctrine. Thus, the Court held narrowly that the
government will need a warrant to access cell-site location information. The
Court distinguished its prior beeper cases, Knotts and Karo, discussed in the next
paragraph. Carpenter was a 5-4 decision with strenuous separate dissents by
Justices Kennedy, Thomas, Alito, and Gorsuch.

Page 280

FYI

The decisions of the Supreme Court of the United States set the minimum
standard for what violates the Fourth Amendment (or any constitutional right of a
criminal defendant). The states are free to impose a higher standard than that set
by the Supreme Court. Therefore, in the area of technologically enhanced
government conduct, some states have defined searches as including the use of
pen registers, the audiotaping of conversations without the knowledge of all the
participants in the conversation, and other means of obtaining information that
may or may not be below the standards established by United States Supreme
Court cases. The law enforcement professional should determine the status of
technologically enhanced searches under the law of the state in which he or she is
working.

The use of electronic beepers to monitor movements of suspects was involved in

two other cases, United States v. Knotts35 and United States v. Karo.36 The result
in both cases turned upon the Court’s view of whether the information obtained
by the government was or was not open to public view. In Knotts, officers placed
a beeper in a chemical container that they knew would be sold to the suspects.
The beeper emitted a radio signal that the officers monitored to track the
suspects’ movements on the streets and highways. Using visual as well as
electronic monitoring, the officers were able to locate the suspects via their
possession of the “beeperized” container, even though the officers lost visual
contact with the suspects. The Court held that, since the officers gained only as
much information as they would have gotten through visual surveillance (even
though they lost visual contact), there was no search. Also of importance to the
Court was the fact that the beeper was of limited use—the officers did not track
the suspects’ movements within a private area, such as the dwelling the suspects
entered.
In contrast to Knotts, the Karo scenario was quite different in the Court’s eyes.
Karo also involved a beeper in a chemical container, but the police used it to
monitor the suspect’s movements within private houses as well as public places.
The Court found this monitoring to be a search, since the monitored property had
been removed from public view.

In addition, in Kyllo v. United States,37 the Court found the use of a thermal
imaging device was an unconstitutional search because the sense-enhancing
device obtained information about Kyllo’s home that could not otherwise have
been obtained without physical intrusion into the home. In Kyllo, an agent from
the Department of the Interior suspected that Kyllo was growing marijuana in his
home, which was part of a t­riplex. The agent scanned the exterior walls of the
triplex with a thermal imaging device to detect the heat that emanates from lamps
commonly used for cultivating marijuana plants. The scan showed that the roof
over the garage and a side wall of Kyllo’s home were relatively hot compared
with the rest of the home and substantially warmer than neighboring homes in the
triplex. The agent concluded that Kyllo was using halide lights to grow marijuana
in his house, which indeed he was. Based on the thermal imaging readout, the
agent obtained a search warrant for Kyllo’s home, where he found more than
100 marijuana plants. The Supreme Court reversed Kyllo’s conviction, holding
that, when the government uses devices that are not in general public use to
acquire information that would otherwise be unknowable, such surveillance is a
search and is presumptively unreasonable without a warrant.

Page 281

Thus, the Kyllo case turned on the fact that thermal imaging devices were not
generally in use by the public. With respect to devices that are readily and
commonly used by the public, a different result will probably occur, as there is no
reasonable expectation of privacy against the use of such devices by the public at
large. For example, assume that a person uses a cordless telephone to conduct
illegal betting activities. One day a neighbor inadvertently overhears the
conversations on her own telephone, contacts the police, and, at the police’s
instruction, electronically records the next betting conversation intercepted on her
telephone. Since it is widely known that cordless telephones may be overheard by
neighbors, passersby, or others, a person cannot be said to have a legitimate,
objective belief that conversations conducted on such a telephone will be private.
Currently, thermal imagers, infrared scanners, parabolic microphones, and other
ultrasensitive listening devices that “look” or “hear” through walls have not been
approved by the Court. On the other hand, a person may not have an expectation
of privacy in what is said in a public place or an open field, even if it is
intercepted through the use of an ultrasensitive listening device.

Finally, in United States v. Jones,38 the Court held that the government’s
installation of a GPS tracking device on a suspect’s vehicle, and use of the device
to monitor the vehicle’s movements for 28 days, constituted a “search” under the
Fourth Amendment. In Jones, the defendant was arrested for conspiracy relating
to drug trafficking after the police attached a tracker to his vehicle, without a
warrant, and used it to follow him. At trial, the government introduced the data
derived from the GPS tracking system, which connected the defendant to the
alleged conspirator’s stash house. A jury found the defendant guilty; however, the
Court of Appeals reversed the conviction because the admission of evidence
obtained by use of the GPS device without a warrant violated the Fourth
Amendment. The Supreme Court rejected the government’s argument that there is
no reasonable expectation of privacy in a person’s movement on public streets,
and affirmed the lower court’s ruling.

In Jones, a unanimous Supreme Court concluded that the government’s actions

qualified as a “search” under the Fourth Amendment. The Justices divided
sharply, however, over the reasoning supporting that conclusion. Only five
Justices joined Justice Scalia’s majority opinion, which endorsed the theory that
attaching the GPS on the vehicle constituted a trespass. According to the majority,
a “physical intrusion” of that sort “would have been considered a search” at the
time the Fourth Amendment was adopted. The majority conceded that, beginning
with Katz, later decisions of the Court “deviated from th[e] exclusively property-
based approach,” focusing instead on reasonable expectations of privacy;
however, these decisions, “did not repudiate” the historical understanding of the
Fourth ­Amendment—that it “embod[ies] a particular concern for government
trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.”

Page 282

Four Justices concurred in the judgment but the result could be reached by the
reasonable expectation of privacy standard of Katz and its progeny. Though
Justice Sotomayor joined the majority opinion, she emphasized the need to apply
Katz to GPS monitoring that does not involve a trespassory installation. It
remains to be seen whether the majority approach in Jones marks a significant
deviation from the expectation of privacy test and a return to the physical
intrusion test of the past.39 The physical intrusion theory of Jones, as opposed to
the expectation of privacy theory of Katz, was applied again in Florida v.
Jardines.40 In Jardines, a five-Justice majority concluded that a dog sniff on the
porch of a home constituted a search. Jardines is discussed more fully later in this
chapter.

Application Case

The physical intrusion theory of Jones and Jardines was applied again in the case
of Grady v. North Carolina,41 where the Supreme Court of the United States
considered the validity under the Fourth Amendment of a state statute requiring
satellite-based lifetime monitoring of Grady for repeated sex offenses. The state
courts found that the Fourth Amendment did not apply, so Grady’s opposition to
the application of the statute to him was denied. The United States Supreme Court
reversed the holding of the state courts, finding that the Fourth Amendment did
apply, but remanded the case to the state courts for an initial determination of the
reasonableness of the search, which had not been determined by any state court.
On remand, the Court of Appeals of North Carolina concluded that such
monitoring was unreasonable under the Fourth Amendment.42

Aerial Surveillance
Another recurring scenario in cases involving the expectation of privacy is aerial
surveillance. The Supreme Court has decided in two cases that, as long as the
officer is in airspace navigable by the public and conducts the surveillance in a -­
nonobtrusive and nontechnologically enhanced manner, such aerial surveillance
does not ­constitute a search, even though the observations are of activities taking
place within the curtilage of private dwellings. In California v. Ciraolo,43 the
Court upheld a fixed-wing airplane flyover at 1,000 feet; in Florida v. Riley,44 the
Court upheld surveillance from a helicopter hovering at 400 feet. In both cases,
the Court found that the observations took place from positions within publicly
navigable airspace under Federal Aviation Administration (FAA) regulations. In
both cases, the officers resorted to flyovers because their attempts to observe
suspected marijuana cultivation within the curtilage of the dwellings had been
frustrated by a fence and a partially enclosed greenhouse, respectively.

Miscellaneous Matters Pertaining to Defining a

Search
One common thread running throughout the Supreme Court’s analyses of the
expectation of privacy issues in the cases previously discussed is the test of how
much and what kind of information has been obtained by the law enforcement
activities. As we saw in the aerial surveillance cases, if the information obtained
was available to the public, then the Court has concluded that there was no
search. The nature of the information revealed in certain specific circumstances is
a factor in determining whether a search occurred and whether the expectation of
privacy was violated. Specific circumstances addressed in court cases have
included chemical field testing, inspection by drug-sniffing dogs, inspection of
garbage, and abandoned property.

Page 283

Whether police conduct constitutes a search may depend upon such factors as the
quantity or quality of information the conduct reveals. In United States v.
Jacobsen,45 a package shipped by FedEx had broken partially open. FedEx
employees opened it all the way to repack it in accordance with company policy
and noticed in the package a baggie containing a suspicious white, powdery
substance. This conduct by the FedEx employees did not trigger the Fourth
Amendment because no government conduct was involved. The FedEx
employees then called the Drug Enforcement Administration (DEA). The federal
agent, who responded to the FedEx office, subjected the white powder to a color
indicator chemical test to establish whether it was likely that the substance was
cocaine. The Supreme Court held that, since the only information that the DEA
agent’s test revealed was whether the substance was contraband, there was no
government violation of a legitimate expectation of privacy. This ruling rests on
two principles: first, that there can be no legitimate expectation of privacy in
contraband and, second, that when the information revealed by the government
action is very limited, there is no search.

The Court reached a similar result based upon substantially similar reasoning in a
case holding that subjecting luggage to a sniff test by a dog trained to signal upon
smelling narcotics does not constitute a search. In the case, United States v.
Place,46 the Court based its decision on the facts that there was no serious
intrusion, the information revealed was very limited in nature, and the
information would only disclose the presence or absence of contraband, which
cannot be legally possessed. In Illinois v. Caballes,47 the Court turned the dicta of
Place into a holding. The Court declared that its holding in Caballes was
“entirely consistent” with the ­conclusion that the use of a thermal imager on a
home is a search. “Critical” to the decision on the thermal imager in Kyllo “was
the fact that the device was capable of detecting lawful activity,” including
intimate details, such as the hour at which the lady of the house might take a daily
bath. In contrast, the Court noted, a dog sniff conducted during a lawful traffic
stop, as it was in Caballes, that reveals “no information other than the location of
a substance that no individual has any right to possess does not violate the Fourth
Amendment.”48 Moreover, in Florida v. Harris,49 the Court held that a dog
certified in drug detection provided probable cause for a search of a vehicle when
the dog alerted during a routine traffic stop.

Yet another dog sniff case, Rodriguez v. United States,50 involved a stop for a
traffic violation. Unlike the situation in Caballes, the officer detained the suspect
after completion of the “mission” of the stop—issuing a citation—in order to
subject the car to a dog sniff. The Court held that a police stop exceeding the time
needed to handle the matter for which the stop was made violates the
Constitution’s shield against unreasonable seizures.”51

The case of Florida v. Jardines52 also involved a dog sniff, this time of the front
door of a home, accessible by the officer walking on the porch. The trained drug
detection dog alerted to the presence of drugs, confirming a report that marijuana
was being grown within the home. Based on that alert, the officers obtained a
warrant, entered the home, searched, and discovered marijuana plants. A five-
Justice majority adopted the approach set forth in the Jones case the year before
concluding that the warrantless dog sniff constituted a search in violation of the
Fourth Amendment. Citing both Jones and Katz, the majority concluded that “the
officers were gathering information in an area belonging to Jardines and
immediately surrounding his house—in the curtilage of the house, which we have
held enjoys protection as part of the home itself. And they gathered that
information by physically entering and occupying the area to engage in conduct
not explicitly or implicitly permitted by the homeowner.”

Page 284

Finally, the status of a citizen’s expectation of privacy in relation to garbage and

abandoned property must be examined. When one places garbage for collection in
containers out on the street, there is no legitimate expectation of privacy. In
California v. Greenwood,53 the Supreme Court noted that the garbage was outside
the curtilage and concluded that the Fourth Amendment does not protect
information knowingly exposed to the public (relying on the aerial surveillance
cases) or voluntarily turned over to others (relying on the pen register case). Both
of these principles also relate to material that has been abandoned.
What Is a Seizure?
The Fourth Amendment extends to persons, houses, papers, and effects and
requires that searches and seizures thereof not be unreasonable. Seizures of
objects implicate different values than seizures of persons. A seizure of
property occurs “when there is some meaningful interference with an
individual’s possessory interests in that property.”54 Destroying property,
taking property from the person’s possession, and preventing persons from
entering or leaving their homes constitute meaningful interferences with
individuals’ possessory interests.

The seizure of a person may be by means of a formal arrest or by lesser

means of restriction of freedom. Formal arrest, when a person is handcuffed
and taken to the station, is clear-cut. More complex issues arise when there
is no formal arrest and the defendant argues that he or she was seized within
the meaning of the Fourth Amendment. The United States Supreme Court
has provided a definition by which to judge whether a person is seized. A
person is seized when (1) by means of physical force or show of authority,
the person’s freedom of movement is restrained and only if (2) in view of
all of the circumstances surrounding the incident, a reasonable person
would not have believed he or she was free to leave.55

In Florida v. Bostick,56 two officers, with badges and insignia, boarded a

bus bound from Miami to Atlanta during a stopover in Fort Lauderdale.
One of the officers held a zipper pouch, which contained a plainly visible
pistol. The officers were executing a plan of random checks on buses and,
without any ability to state a suspicion, approached the defendant, who was
sitting in the back of the bus, identified themselves, and questioned him.
During the questioning, the officers requested and received permission to
search the defendant’s luggage, in which they found narcotics. The
Supreme Court held that, under these circumstances, the defendant was not
necessarily seized by the officers’ approach and questioning. The Court
stated that the correct standard for determining whether a person in
Bostick’s position has been seized is not whether a reasonable person would
feel free to leave. The correct standard is whether “a reasonable person
would feel free to decline the officers’ requests or otherwise terminate the
encounter.”57 ­According to the Court, this new standard is logical because
the defendant’s freedom of ­movement is already restricted by being a
passenger on a bus, a factor not attributable to any action by the police.

Page 285

If there is a show of authority by the officer and, under the circumstances, a

reasonable person would not feel free to leave, there must also be a
submission to authority before the encounter can be deemed a “seizure.” As
the Supreme Court in California v. Hodari D. stated, a seizure “requires
either physical force or, where that is absent, submission to the assertion of
authority.”58 A seizure occurs when there has been an application of
physical force to the person, even when the person manages to break free
and escape. On the other hand, when an officer asserts his or her authority,
be it by flashing lights or a pointed gun, and the suspect flees, no seizure
has occurred until that suspect is captured or gives up.

Application Case

In United States v. Drayton,59 the Court applied the Bostick test to another
bus sweep and found that those passengers had not been seized. In Drayton,
one police officer knelt on the driver’s seat, facing the rear of the bus, while
another stood at the back of the bus, facing forward. A third officer walked
forward from the back of the bus, stopping next to each passenger, to whom
he spoke. The police did not tell the passengers that they had the right not to
cooperate. In upholding the ensuing consensual searches, the Court found
nothing that would suggest to a reasonable person that he or she was barred
from leaving the bus.
Ways of Making a Reasonable
Search and Seizure
Three methods have been developed whereby a search or seizure is
generally accepted as reasonable, thus allowing the fruits of the search or
seizure to be introduced at trial:

1. searches and seizures made pursuant to a search warrant;

2. warrantless searches and seizures that have been declared reasonable

via a “well-delineated exception” to the warrant clause; and

3. less intrusive searches and seizures, which are made on less than
probable cause, such as searches and seizures under the Terry doctrine,
discussed later in this chapter (see p. 322), based on a “reasonable
suspicion.”

Searches and seizures conducted pursuant to a valid warrant require

probable cause. In determining the existence of probable cause, the courts
examine the sources of information provided by the officer in support of the
warrant. In addition to the requirement of probable cause, a valid warrant
must satisfy the requirements that the place to be searched and the person or
thing to be seized be specifically set out. The courts review warrants and
warrant applications from a practical, common-sense point of view with
respect to the issuance and service of the warrant. The six “well-delineated”
exceptions to the warrant clause are

Page 286

1. search incident to a lawful arrest (SILA);

2. consent;

3. vehicle and container searches;

 4. inventory searches;

5. exigent circumstances searches; and

6. plain view searches.

Finally, since 1968, the Supreme Court of the United States began to
interpret the Fourth Amendment’s unreasonable search and seizure
prohibition to encompass a balancing of governmental interests against the
privacy interests of citizens. This balancing allows that, under certain
circumstances, reasonable searches and seizures without warrants and
without probable cause can occur. Thus, under the decision in the Terry
case, discussed later in this chapter (see p. 322), in certain circumstances,
searches and seizures may be valid based on reasonable suspicion rather
than probable cause.

Even though these methods of search are generally acceptable, they are not
without their complications. Involved in each method are a number of legal
technicalities that must be observed or the search may still be deemed
unreasonable. However, space will not permit a complete discussion of all
the ramifications of the laws as they pertain to search and seizure. No other
field relating to criminal evidence has been explored in writing more than
the subject of search and seizure.
Search Pursuant to a Search Warrant
The Fourth Amendment to the United States Constitution guarantees to the
people the right to be secure against unreasonable searches and seizures. The
framers of this constitutional provision realized that there would be times when
reasonable searches and seizures would be necessary and expedient for the
protection of the people—when a crime has been committed and the perpetrator
of that crime has attempted to conceal himself or herself or the fruits of the crime.
Therefore, the framers included a provision in the Fourth Amendment that
searches and seizures may be properly conducted pursuant to a warrant that will
not be issued, “but upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be
seized.” These requirements specifically prohibit general warrants, preventing a
“general, exploratory rummaging in a person’s belongings.”60 If these
requirements are not carefully adhered to, the search may be deemed
unreasonable and the seized evidence excluded.

Definition of a Search Warrant

A search warrant is a written order, issued in the name of the people, upon
probable cause, by a neutral and detached magistrate to a peace officer directing
the officer to search a particular person or place and to seize specifically
described property and bring it before the magistrate.

Page 287

Grounds for Issuing a Search Warrant

Although the grounds for the issuance of a search warrant may vary slightly from
one jurisdiction to another, they are generally the same. A search warrant may be
issued when it authorizes a search for particular

1. property that is the fruit of a crime, such as stolen or embezzled property;

2. property that is an instrumentality of a crime, meaning that the ­property was

used as the means of committing a crime, such as a gun used in a robbery;
 3. property that is evidence of a crime, tending to show that a felony has been
committed or that a particular individual has committed a felony, such as a
bloody shirt;

4. property that is contraband, meaning any property that is unlawful to

produce or possess, such as narcotics; or

5. persons for whom there is probable cause to believe that they have on their
person one of the types of property named in the first four categories, or for
whom there is a warrant for their arrest.

Procedure to Obtain a Search Warrant

An officer may not merely go to a magistrate and request that a search warrant be
issued for the search of a person or a place. The officer must be able to show that
there is sufficient reason, or probable cause, to believe that one of the f­ oregoing
grounds for the issuance of a search warrant exists. This belief must be based on
facts articulated in a written and sworn application for a warrant. This a­ pplication
is known as an affidavit. The officer must then seek approval of the warrant ­-
application from a supervisor or, in some jurisdictions, a prosecutor. Once
supervisory approval is obtained, the officer can then go to a judge or magistrate
to submit the warrant application and secure the issuance of the warrant. The
person issuing the warrant must be a neutral magistrate or judge. The officer
usually will find the judge in the courthouse, but, if the circumstances demand,
the officer may even have to go to the judge’s home outside normal working
hours. It is also ­possible for a judge to issue a warrant by telephone. The
procedure and circumstances for issuance of a telephonic warrant vary from
jurisdiction to jurisdiction.

Before issuing the warrant, the magistrate must be satisfied that the facts set forth
in the affidavit give rise to probable cause. If the affidavit contains hearsay
information, such as from an informant, the judge will closely scrutinize the
affidavit. If the magistrate does not think that the officer has enough facts to
establish probable cause, or that the hearsay information is unreliable, the
magistrate may, in some jurisdictions, question the officer. The questioning may
provide additional facts and circumstances sufficient to support the belief that the
items sought are at the place where they are alleged to be. Or the questioning may
supply a more complete description of the thing or person to be seized in order to
meet the “rule of particularity,” i.e., the requirement of specifying the items
sought. These questions and answers will be reduced to writing and made a part
of the affidavit filed by the officer. If, after this questioning takes place, the
magistrate is convinced that sufficient probable cause exists, the magistrate will
issue the warrant. Magistrates usually spend only a few minutes reviewing an
affidavit, and few applications for warrants are rejected by magistrates. See
Figure 9–1 for a sample search w ­ arrant and affidavit (the sample is from the 1994
O.J. Simpson criminal case).

Page 288
 FIGURE 9–1 Sample search warrant and affidavit.

Page 289

Probable cause to search “exists if the facts and circumstances within [the offi­-
cers’] knowledge and of which they [have] reasonably trustworthy information
[are] sufficient in themselves to warrant a man of reasonable caution in the belief
that an item subject to seizure will be found in the place to be searched.”61 There
must be a “fair probability”62 that the property subject to being seized by the
government (contraband, fruits, instrumentalities, or evidence of a crime) is
presently in the specific place to be searched. In other words, if it is alleged that
certain stolen property is believed to be at a particular place, there must be
enough facts presented to cause a person of reasonable caution to believe, by a
fair probability, that the stolen property is at that place. A fair probability has not
been defined by the courts affirmatively but has been specifically said to be less
than a preponderance of the evidence, meaning somewhat less than a 50 percent
likelihood.63

FYI

A search warrant issued by one judge may be challenged before another judge at
a preliminary hearing or at trial. If the basis for the warrant is deemed insufficient
by the judge reviewing it, then the warrant and the fruits of the search will be
excluded from evidence despite the fact that a previous magistrate or judge
authorized the search.

Application Case

In Maryland v. Pringle,64 an officer stopped a car, with three occupants, for

speeding. When the driver, a man named Partlow, opened the glove compartment
to retrieve the vehicle registration, the officer observed a large amount of rolled-
up money in the glove compartment. When the officer asked for permission to
search, Partlow consented. The search of the vehicle yielded $763 from the glove
compartment and five plastic glassine baggies containing cocaine from behind the
backseat armrest. The officer questioned all three occupants about the ownership
of the drugs and money and told them that, if no one admitted to ownership of the
drugs, he was going to arrest them all. The men offered no information regarding
the ownership of the drugs or money. All three were placed under arrest and
transported to the police station. Later, defendant P­ ringle, who was the front seat
passenger, confessed that the cocaine was his. A jury convicted him of possession
with intent to distribute cocaine and possession of cocaine.

Appealing the conviction, Pringle argued that his confession should have been
suppressed because he was illegally arrested. More specifically, he claimed that
the officer had no probable cause to arrest him because the officer did not know
whom the cocaine belonged to, since there were three occupants of the car, the
cocaine was in the backseat behind an armrest, and Pringle was in the front seat.
The United States Supreme Court rejected Pringle’s argument and affirmed the
conviction, stating,

We think it “an entirely reasonable inference from” these facts “that any or
all three of the occupants had knowledge of, and exercised dominion and
control over, the cocaine. . . . Thus, a reasonable officer could conclude that
there was probable cause to believe Pringle committed the crime of
possession of cocaine, either solely or jointly.

Page 290

The Supreme Court’s ruling overturned the decision of the Maryland high court,
which had reversed Pringle’s conviction for lack of probable cause. The Maryland
court had “dismissed” the money as a factor for the officer to consider in finding
probable cause. The Supreme Court disapproved of the Maryland court’s
“consideration of the money in isolation,” reaffirming that the police officer was
justified in taking into account the money and everything else in the “totality of
the circumstances” supporting the probable cause conclusion.

Like probable cause to search, probable cause to arrest is defined in terms of the
information possessed by the arresting officer. Thus, probable cause to arrest
exists when the facts and circumstances within the officer’s knowledge, and of
which he or she has reasonably trustworthy information, are sufficient to warrant
a person of reasonable caution to believe, by a fair probability, that a particular
individual has committed, or is committing, a particular offense.

Application Case

In Draper v. United States,65 an informant told the police that the defendant had
gone to Chicago on a particular day and would return on a certain day with three
ounces of heroin in his possession. The informant further described with
particularity what the defendant would be wearing, the tan zipper bag he would
be carrying, and the defendant’s habit of walking fast. However, the informant did
not state how he obtained his information. Nonetheless, the Supreme Court held
that the hearsay information supplied by the informant was sufficiently reliable to
support probable cause. The informant described the criminal activity of the
defendant in such detail, which was corroborated by the officers’ observations, to
support the inference that the informant’s information was reliable.
Source of Information

In order to establish probable cause, it is not necessary for the officer seeking a
search warrant to have personal knowledge of the facts stated in the application or
affidavit. The officer’s information may stem from a variety of sources. The
officer may receive it from a superior officer, a confidential informant, an
anonymous tele­phone call, a reliable person in the community, another officer
who is an expert in a particular field (such as narcotics or bookmaking), or
personal observations. The source of information is often hearsay in nature, and
the information might not be admissible at trial. But the information must have
been supplied by a source that an ordinarily prudent person would accept as
reasonably trustworthy. Whether the information provided in the affidavit is
reliable will be determined by a magistrate, taking into account the “totality of
circumstances” surrounding the application for the warrant.

Page 291

Confidential Informant or Anonymous Source

Many times, when information is furnished to an officer, it is deemed advisable to

keep the i­dentity of the informant confidential. The informant does not have to be
identified in the affidavit in order to establish probable cause for issuing a search
warrant, but there must be enough facts set forth to enable the magistrate to
determine the reliability of the information furnished.

If the information that the officer provides in the affidavit is hearsay, by way of
an informant or an anonymous source, then the magistrate must decide whether
the information is reliable based on the “totality of circumstances.” This means
that the magistrate must make a practical, common-sense decision whether, given
all the circumstances set forth in the affidavit, including the veracity (or
believability) and the basis of knowledge of persons supplying the hearsay, and
corroboration through other sources of information, there is a fair probability that
the thing to be seized will be found in a particular place. The basis of knowledge
of the person supplying the hearsay may be shown if the informant states that he
or she personally observed the reported facts. Or it may also be demonstrated by
self-verifying detail—when the informant describes the criminal activity in such
detail as to allow an inference that he or she gathered the information in a reliable
way. Accordingly, if information is furnished by an unnamed informant, such
information should be set forth in the affidavit in as much detail as possible in
order to establish the informant’s basis of knowledge.
FYI

The Draper case is illustrative of the fact that an arrest of a suspect in a public
place, without an arrest warrant, is justified if the arresting officer has probable
cause to believe that the suspect has committed or is committing a serious crime.
But the Supreme Court did not have occasion to specifically state that rule as a
matter of constitutional principle until its decision, in 1976, in the case of United
States v. Watson.66 Then, in 2001, in ­Atwater v. City of Lago Vista,67 the Court
held that a police officer can arrest a person without a warrant for committing an
offense in the officer’s presence, even if the offense is a minor one. In Atwater,
the officer stopped the defendant for failing to wear a seat belt and failing to
secure her children with a seat belt. The Texas law involved was a misdemeanor,
punishable only by a fine. The officer arrested, handcuffed, and booked Atwater
into jail for this violation. Atwater sued the city, claiming that her arrest was
unreasonable, since her violation was only punishable by fines. The Supreme
Court disagreed with Atwater and found her arrest to be reasonable because an
officer may arrest an individual if there is probable cause to believe that she has
committed an offense, even a minor offense.

Application Case

In Illinois v. Gates,68 the Bloomingdale, Illinois, Police Department received an

anonymous letter informing them that a married couple in town was dealing in
large quantities of marijuana, which they transported by automobile from Florida.
The letter predicted a drug run, giving specific details and a specific date. -­
Detective Mader, acting on this tip, investigated the couple’s activities,
corroborating much of the predicted behavior. On the basis of the tip and the
investigation, the detective sought and obtained a warrant to search the couple’s
home and automobile upon their return from Florida. In upholding the issuance of
the warrant and the subsequent search and seizure of 350 pounds of marijuana,
the Court stated that the Aguilar v. Texas69 and United States v. Spinelli70 two-
pronged test for probable cause based upon an informant’s tip should not be
rigidly applied. Instead, the Court adopted a totality of the circumstances test for
probable cause. In the totality of the circumstances, an informant’s basis of
knowledge and veracity are factors to be taken into account but should not be
rigidly applied. Following is the Gates Court’s statement describing the test it
adopted:71

Page 292
 [W]e reaffirm the totality of the circumstances analysis that traditionally has
informed probable cause determinations. … The task of the issuing
magistrate is simply to make a practical, common-sense decision whether,
given all the circumstances set forth in the affidavit before him, including
the “veracity” and “basis of knowledge” of persons supplying hearsay
information, there is a fair probability that contraband, or evidence of a
crime will be found in a particular place.

FYI

In both the Draper and Gates cases, the information provided by the informant
“contained a range of details relating not just to easily obtained facts and
conditions existing at the time of the tip, but to future actions of third parties not
easily predicted.”72 In short, the United States Supreme Court was persuaded that
a source seemingly possessed of inside information could be counted as reliable.

The veracity of the person supplying hearsay information may be shown by

evidence demonstrating either that the informant is a credible person or that his or
her information is reliable. For instance, believability may be shown if the officer
relates that prior information furnished by the same informant has been found to
be true and reliable. The number of times information has been furnished, or the
period of time over which reliable information has been given, will assist the
magistrate in making a determination that the informant is credible or his or her
information is reliable.

If either the basis of knowledge or the veracity factors (or both) are lacking, there
may be some other means of corroborating the hearsay. It may be possible to
determine the reliability of the information by reference to investigative leads.
Probable cause can be established by investigations that verify, or tend to
confirm, the information provided by the informant or anonymous source. In
these circumstances, the officer would be establishing probable cause from his or
her own observations and knowledge and not that of an informant. However, this
confirming knowledge must have been gained through proper conduct and not by
an illegal entry, trespass, or other violation of the law.

Judicial Review of Probable Cause

Just because a search or seizure was made pursuant to a search warrant does not
ensure in all instances that the search or seizure will have been reasonable. The
trial court, and later an appellate court, when called upon by the accused, will
make a careful review of the issuance of a warrant and make an independent
decision. Recent United States Supreme Court decisions require an appellate
court to be deferential to a magistrate’s finding of probable cause.

Page 293

As discussed previously, probable cause is determined from the totality of the

circumstances for probable cause, which is a fluid concept based on
nontechnical, common-sense considerations. Probable cause, therefore, is not
determined under a neat set of legal rules but is determined in light of how
reasonable people act in everyday life. The Supreme Court has defined probable
cause this way because it felt that a rigid set of legal rules would unduly hamper
law enforcement. As one might logically conclude, an appellate court should
defer to a magistrate’s finding because the magistrate is in a better position to
determine probable cause under the “totality of circumstances” existing at the
time of the application. The magistrate’s determination of probable cause does not
depend upon certainty but upon probability, and, more particularly, upon a fair
probability.

Application Case

An officer may be possessed of probable cause and reasonable suspicion if the

suspicion is based on a mistake of fact or law. In Heien v. North Carolina,73 an
officer was following a suspicious vehicle and noticed that only one of the
vehicle’s brake lights was working. The officer stopped the vehicle, got consent
to search the vehicle, found cocaine, and arrested Heien. The officer believed that
state law required two working brake lights. This was a mistake of law because
the applicable state law required only a single “stop lamp” on the rear of the
vehicle. In upholding the officer’s reasonable suspicion of a law violation, the
United States Supreme Court noted that mistakes of fact had long been
recognized as properly supporting a finding of probable cause, because it only
requires probability not certainty. As long as the mistake is reasonable, then there
is no violation of the Fourth Amendment. The Court found in this case that the
same principle applies to mistakes of law and reasonable suspicion.

The Supreme Court reaffirmed the fluidity of the totality of the circumstances test
of Gates in the 2013 decision in Florida v. Harris.74 Officer Wheetley pulled over
Harris’s truck because it had an expired license plate. When Wheetley observed
that Harris was extremely nervous, Wheetley brought his trained narcotics
detection dog, Aldo, to the truck. Wheetley walked Aldo around the truck for a
“free air sniff.” When Aldo signaled that he detected drugs at the driver-side door
handle, Wheetley searched the truck, finding the ingredients for making
methamphetamine, but none of the drugs Aldo was trained to detect. Harris was
convicted of possessing one of the ingredients for use in manufacturing
methamphetamine.

Harris’s motion to suppress the evidence was denied by the trial court on the
grounds that Wheetley had probable cause to search based on Aldo’s alert. The
Florida Supreme Court reversed, holding that, to sustain a probable cause finding
based on a trained detection dog’s alert, the state had to introduce extensive
evidence of the dog’s field performance records, which the state had failed to do
in this case. The United States Supreme Court unanimously reversed the decision
by the Florida court, holding that the Florida court had “flouted” the “fluid”
probable cause concept of the totality of the circumstances test of Gates and its
progeny. Aldo’s certification and training programs, according to the Court,
themselves provided sufficient reason for Officer Wheetley to trust his alert.

Page 294

Consequently, given that a magistrate determines probable cause under such

amorphous concepts as “fair probability” and “totality of circumstances,” an
appellate court will not likely reverse a magistrate’s determination.

ON THE JOB

When applying for a warrant, sometimes it is necessary to leave out specific

details about an informant for his or her safety. For example, it would be unwise
to include detailed information about the date or time of an informant’s c­ ontrolled
narcotics buy from a drug dealer. Through the process of elimination, the drug
dealer would be able to determine the informant’s identity, thus jeopardizing the
informant’s life.

Particularity of Description of Property to Be

Searched or Seized
The Fourth Amendment to the United States Constitution provides that the place
to be searched and the things to be seized must be particularly described. Since
“particularly described” is not spelled out, court decisions have set forth certain
guidelines.
First, the court considers the purpose of the requirement of particular description.
The requirement of particularity seeks to prevent an indiscriminate, blanket
authority to search a place or an area and to prohibit a wholesale seizure without
limits. Consequently, the court will look very carefully at the description of the
place to be searched. If it is not specifically designated, the magistrate may refuse
to issue the search warrant. The following is an example description in which the
premises to be searched are a dwelling house: premises located at 129 Main
Street, Walnutville, Maine, consisting of a white, one-story dwelling with blue
trim, with an attic, a basement, a detached garage, and a tool shed (if the grounds
surrounding the residence and outbuildings are to be included in the search,
notation to that effect should be made in the search warrant). If the occupant of
the premises is known, the occupant’s name should also be included in the
description of the premises searched.

Being vague or mistakenly describing the premises to be searched does not

necessarily invalidate a warrant. For instance, in Maryland v. Garrison,75 the
police had a warrant to search the third-floor apartment of one McWebb. The
officers did not know at the time that the third floor had more than one apartment.
The police mistakenly searched the apartment of the defendant, Garrison,
thinking it was McWebb’s. They found contraband in this apartment and charged
Garrison with its possession. The Supreme Court upheld the search and seizure as
objectively understandable and reasonable. Although in retrospect the warrant
was overbroad, the police, in light of the information available to them at the time
of the search, executed the warrant under a good faith belief that they were acting
within the scope of the warrant.

Discovery of Other Property—the Plain View

Doctrine
Under the particularity requirement for warrants, the scope of the search
authorized is limited to those items named in the warrant. Thus, the officer, while
executing a warrant, may only seize those items that are described in the warrant.
However, if the officer, while conducting a search within the reasonable scope of
the warrant, observes material that the officer has probable cause to believe is
subject to seizure, he or she may seize it. As long as the material is within plain
view and the officer is in a lawful position when the observation is made,
anything that the officer recognizes to be fruits, instrumentalities, contraband, or
evidence may be seized. Under this doctrine, the officer does not have to be blind
to other items that may be observed on the premises, even though those items are
not described in the search warrant.

Page 295

The plain view doctrine is actually an exception to the requirement of a warrant

for a seizure and is discussed under the warrant clause exceptions later in this
chapter. There is a significant aspect of that doctrine as it applies to the issues
related to warrants. Even if an officer is aware that certain objects not listed in the
warrant may be present and discovered during the search, the officer may seize
those items if they are discovered in plain view during the course of the search
authorized by the warrant. In other words, inadvertence is not a requirement for
the plain view doctrine to apply.

An example will help demonstrate the relationship between inadvertence and the
plain view doctrine. In Horton v. California,76 an officer investigating an armed
robbery obtained a warrant to search a suspect’s home. Evidence led the officer to
suspect the accused, and the officer applied for a warrant. In the affidavit, the
officer referred to police reports that described the weapons used in the robbery as
well as the proceeds—jewelry and cash—but the warrant issued by the magistrate
authorized only a search for the proceeds, including three specifically described
rings.

The officer searched the residence pursuant to the warrant, but he did not find the
stolen property. During the course of the search, however, he did discover the
weapons in plain view and seized them, along with other items of evidence that
were not the proceeds. The Court held that, although the officer knew about the
weapons before the search and did not list them in the warrant, the seizure of
them in plain view was valid. Since the officer did not extend the search beyond
that authorized by the warrant, and the search as conducted was supported by
probable cause, the seizure of the weapons was legitimate. If the officer had
found the proceeds before discovering the weapons, the search authorized by the
warrant would have been completed and the weapons could not have been the
subject of a valid search and seizure.

Night Service of a Warrant

A common law tradition held that a person’s right to privacy in his or her home
was especially strong during the nighttime hours. Consequently, there existed a
belief that nighttime service of a warrant required a degree of certainty greater
than just probable cause. However, in 1974, the Supreme Court held that there is
no Fourth Amendment requirement that warrants may be served only at night
upon a showing of special circumstances.77 Similarly, a majority of the states do
not have special rules for the service of warrants at night. However, in 33 states,
the execution of search warrants is limited to daytime hours, absent some special
reason and authorization. Ten other states expressly allow the execution of a
search warrant at any time. The remaining 7 states have no rules, either court
made or statutory, that restrict the execution of search warrants to the day.78 See
Figure 9–2, listing those states with restrictions upon nighttime execution of
search warrants and requiring some special showing by law enforcement that will
have to be made before a nighttime search warrant will be issued. A common
restriction is that the affidavit supporting the search be “positive” that the
property being sought is in the place to be searched.79 This means that the officer
must include information in the affidavit that will justify the assertion of a
positive belief that the particular property is in the place to be searched. Another
common restriction is that a nighttime search warrant will only be issued for
“good cause,” which focuses on the need to search the premises in the nighttime,
rather than the likelihood that the property being sought is on the premises. Good
cause will ordinarily require that the officer show that the nighttime search is
justified by some exigency, such as apprehending a fleeing killer or a risk that
evidence will be destroyed.

Page 296
 FIGURE 9–2 States with special restrictions upon service of warrants
at night.

Source: Burkoff, John M., Search Warrant Law Deskbook (St. Paul,
MN: Thomson Reuters). Available online via Westlaw:
[Link]
awSecondarySources/CriminalLawTextsTreatises/SearchWarrantLawD
eskbook?transitionType=Default&contextData=
([Link])&VR=3.0&RS=cblt1.0

ON THE JOB

When seeking a search warrant, remember to list everything and everyone that
you anticipate finding and everywhere you intend to search. This is important for
several reasons. First, assume just one or two items are listed on the warrant, such
as the gun used in a homicide, yet you expect to find the rest of the
instrumentalities, fruits, and evidence during the search. In such a case, if you
found the gun quickly, you would no longer be authorized to continue the search
because the warrant was limited in scope to the gun. Anything seized after the
gun was found would probably be inadmissible.

Second, you can be precluded from searching certain areas or places if you list
only some of the items you are seeking. For example, if you believe burglary
tools and stolen televisions will be found at a residence but list only the
televisions, then you cannot search any area that is too small for a television, such
as in drawers, small cabinets, and cupboards or under the furniture.

Finally, you should carefully list all the areas you want to search so that the
magistrate can determine the reasonableness of the request. For example, assume
you have reliable information that stolen money is buried in the backyard of a
residence. If you were to write “search of the backyard” on the warrant, the
magistrate might issue a warrant thinking that an above-ground search has been
approved. However, your intent was to bring in a backhoe and dig up the yard. A
magistrate will expect much more information in order to approve the digging up
of a backyard than to conduct an above-ground search.

Also, for the purpose of executing a warrant, there is no uniformity as to what

constitutes daytime or nighttime. One view is that nighttime is that period
between sunrise and sunset. Other states take the view that search warrants may
be executed only during specified hours, such as 8 a.m. to 8 p.m.

“No-Knock” Warrants
There has been a push to limit no-knock warrants in light of deaths like Breonna
Taylor. “As of February 2022, there are 27 states with some kind of restriction on
the use of no-knock warrants and 22 cities that have restrictions as well. A total of
four states—Oregon, Connecticut, Virginia, and Florida—have outright banned
the use of no-knock warrants. Many of these bans and restrictions came after
Taylor’s death.”80

Page 297

Who May Serve a Warrant

A search warrant may be served only by a peace officer, not by a private citizen.
A search warrant may be served by any one of the officers, or class of officers, ­-
mentioned in the warrant. If a particular officer, and no others, is named in the
search warrant, that officer, or someone who is aiding him or her while the named
officer is present, must serve the warrant.

Usually, the officer has the search warrant in his or her possession at the time the
officer is going to execute the search but not all states have statutes requiring this.
The usual practice is that, when a search is made pursuant to a search warrant, the
officer executing the search shows the original search warrant to the occupant of
the premises to be searched. The officer then furnishes the occupant with a copy
of the warrant and the affidavit before the search. If there is no one present at the
time of the search, a copy of the search warrant and affidavit should be posted in
a conspicuous place inside the premises. Taping the warrant on a living room TV
screen works well, since people usually notice that their premises have been
entered and usually check to see if portable items, such as TV sets, have been
stolen.

Application Case

In Wilson v. Layne,81 the Wilsons brought a civil suit against the United States -­
Marshals Service and the local Sheriff’s Department (Montgomery County, ­-
Maryland), claiming that their Fourth Amendment rights were violated when the
peace officers brought the media to observe and record the execution of arrest
warrants for their son, Dominic Wilson. Dominic was a wanted suspected violent
criminal, one of many who were the subject of a major operation of the
Department of Justice aimed at apprehending dangerous criminals. The officers
were not aware that the residence they entered was the home of Dominic’s
parents, not Dominic. The Supreme Court agreed with the Wilsons and held that
it violates the homeowner’s Fourth Amendment rights “for police to bring
members of the media or other third parties into a home during the execution of a
warrant when the presence of the third parties … was not in aid of the execution
of the warrant.”82 When the police execute a warrant, their power to intrude is
limited to the objectives of the intrusion. Bringing journalists who do not aid in
the execution of a warrant exceeds the power granted to them by the Fourth
Amendment.

Page 298
Knock and Announce and the Use of Force in
Execution of a Warrant
Before an officer may execute a search warrant, the officer must knock and
announce (this requirement is also known as knock and notice) his or her
presence and purpose for entering, unless some kind of exigency exists. Whether
a search of a dwelling is ruled reasonable or unreasonable may depend, in part, on
whether the officers executing a search warrant knocked and announced their
presence before entering. If, after making this announcement, the officer is not
admitted, the officer may break into the premises in order to make the search. An
officer may use the amount of force reasonably necessary to carry out the search.
The officer may restrain persons who try to interfere with the search, and, in some
cases, the officer may even arrest the ones who interfere. The officer may break
into locked rooms and closets if admittance is not otherwise granted. But the
search warrant does not give the officer blanket authority to do damage to the
premises not ­necessary to accomplish the search or to otherwise act unreasonably
in conducting the search.

ON THE JOB

Officers’ actions in the execution of a search warrant must be reasonable. For -­

example, when searching a bedroom for small items (such as drugs), it is
reasonable for officers to remove, search, and place items (such as clothing) in a
central location in the room (such as the bed). They may also remove, search, and
replace picture frames, perfume bottles, and similar items on shelves or move or
turn over furniture. It would be unreasonable for the officers to throw picture
frames, other easily breakable items, computers, televisions, or clothes
maliciously onto the floor or fail to return furniture to an upright position.
Officers should place perishable food back into the refrigerator and place
medicines back into medicine cabinets. In other words, reasonable actions are
based on common sense. While it is not necessary to reorganize the closets or
refold the clothes that have been searched, items should not be recklessly or
maliciously destroyed.

Application Case

The Fourth Amendment’s reasonableness requirement has been interpreted to

include, as a factor for determining reasonableness of a police entry into a
dwelling based on a warrant, whether the officers knocked and announced their
authority. In 1995, the Supreme Court of the United States stated in Wilson v. ­-
Arkansas83 that knock and announce was a factor in deciding the c­ onstitutionality
of a police entry into a dwelling.

In Wilson, the officers went to Wilson’s house to search for narcotics and to arrest
her and a codefendant. The officers entered the home without knocking and
announcing their identity and purpose. On appeal of her conviction to the
Supreme Court, the state contended that the arresting officers did not need to
knock and announce because they reasonably believed that a prior announcement
would have placed them in peril, given their knowledge that one of the suspects
had threatened a government informant with a semiautomatic weapon and that
another suspect had previously been convicted of arson and firebombing. The
state also argued that prior announcement would have produced an unreasonable
risk that the suspect would destroy easily disposable narcotics evidence.

Page 299

The state courts did not think that knock and announce was required by the
Fourth Amendment. The Supreme Court held that “the common-law knock-and-­-
announce principle forms a part of the Fourth Amendment reasonableness
inquiry.”84 The Court specifically recognized that there are exigent circumstances
under which officers need not knock and announce, for example, when doing so
would endanger the officers or others or would lead to destruction of evidence.
However, since the state courts had not decided whether the facts of the case
justified the police failure to knock and announce, the Supreme Court reversed
the conviction and sent the case back to the state courts to decide. Subsequently,
in Richards v. Wisconsin,85 the ­Supreme Court held that there is no blanket
exception to the Fourth Amendment’s knock and announce requirement for
felony drug investigations.

In yet another subsequent case, Hudson v. Michigan,86 the Court reaffirmed the
principles announced in previous knock and announce cases. In Hudson, the
officers knocked and announced but waited only three to five seconds before
entering the home to execute the warrant. The state conceded a knock and
announce violation, and the only question before the Court was the remedy. The
Court opined that the knock and announce rule has never protected the citizen’s
interest in preventing the government from seeing or taking evidence described in
a warrant. Rather, the interests protected by the rule are life, limb, and property.
Thus, the Court held that the exclusionary rule is inapplicable to a knock and
announce violation. The remedy for such violation is a civil suit.

Application Case

In United States v. Ramirez,87 the police obtained a “no-knock” warrant to enter

and search a home for a dangerous escaped prisoner, believed to be armed. When
the police went to the house to search, an officer broke a single window in
Ramirez’s garage. Awakened by the noise and fearful that he was being
burglarized, Ramirez grabbed his gun and shot into the ceiling of his garage.
Realizing he had shot at the police, he immediately surrendered and was arrested,
charged, and convicted of being a felon in possession of a firearm. On appeal,
Ramirez argued that the police violated the Fourth Amendment because they
broke into his house and smashed his window while executing the warrant, thus
making his arrest and seizure of the evidence illegal. The Supreme Court rejected
this argument, holding that the police acted reasonably because they are not held
to a higher standard than “no-knock” entries when “no-knock” entry results in the
destruction of property.

Page 300

There are times when announcing the officer’s purpose prior to entering the
premises is not necessary. If the occupants are already alerted to the officer’s
presence, then a knock and announcement is not required. Also, if the officer has
probable cause to believe that his or her life, or that of others, may be in danger,
the officer need not announce his or her presence or the purpose of the visit prior
to entering the premises. Additionally, the officer may enter the premises without
prior announcement and request for admission if there is reason to believe that
evidence may be destroyed as a result of the announcement, or if the officer is in
close pursuit of a fleeing suspect. If the officer has an honest belief that the
premises to be searched are unoccupied, no announcement need be made, and the
evidence seized is admissible, even if it turns out that there were occupants in the
premises at the time. If the officer applying for the warrant believes that the
situation requires an entry without a knock and announcement, the officer would
be wise to seek the magistrate’s approval in the issuance of the warrant. Some
jurisdictions may even require a “no-knock” endorsement on the warrant when
officers anticipate an unannounced entry.

Time Limit on Length of Search

There is no time limit placed on how long officers may take to execute a search
warrant, but the existence of a search warrant does not permit a search to continue
indefinitely. However, any search must be thoroughly made and can be time-­-
consuming. The kind of premises to be searched and the kind of property or
evidence sought are determining factors in the length of time that a search may
reasonably take. If stolen electronics equipment were being sought in a private
residence, the search would probably take no more than an hour or two. On the
other hand, a search for stolen automobile parts in an automobile-parts warehouse
or a junkyard could easily extend into several days.

ON THE JOB

There is no limit on the number of officers that may aid in a search. However, to
avoid overreaction from the public or the suspect, it is advisable that the number
of officers be appropriate for the situation. The search of a private residence
should, under ordinary circumstances, require fewer officers than the search of a
large warehouse.

One must bear in mind that a search warrant permits an invasion of a person’s
privacy. Though a valid search warrant makes the invasion a reasonable and legal
one, the appellate courts could very well take the view that the search went
beyond the limits of reasonableness if the length of time, number of officers, or
treatment of persons and property seems unreasonable.

Time Limit on Execution of Warrant: The Staleness

Doctrine
According to the staleness doctrine, a search warrant, once issued, may not be
held indefinitely by the officer before the search is made. Warrants are issued on
the basis of probable cause to believe that the objects of the warrant are in a
particular place, yet many objects sought via a search warrant are portable and
cannot be presumed to remain in one place indefinitely.

Page 301

Time limitations on the execution of search warrants exist because, as time

passes, probable cause may dissipate. If probable cause to search no longer exists
and a search takes place anyway, a Fourth Amendment violation will occur. This
is logical because probable cause to search is based on the probability that a
particular item is presently in a specific place; if too much time elapses, the item
to be seized may no longer be on the premises. Probable cause, therefore,
becomes stale.

Specific laws usually set the length of time within which a search warrant must be
executed, measured from the time the warrant was issued. The usual time is ten
days. If the search is not made within that time, the search warrant becomes void.
If the officer still wishes to make a search, a new search warrant must be
obtained. In most jurisdictions, the time cannot be extended.

In some jurisdictions, there is no prescribed time within which the search warrant
must be executed. The law of these jurisdictions merely provides that the
execution of the search warrant be “immediate” or within a “reasonable time”
after issuance. Many of these provisions have been interpreted liberally. However,
seldom will the time for service be extended beyond a two-week period.

An arrest warrant, unlike a search warrant, does not become stale in most
instances. Once probable cause to arrest arises, it does not lapse, unless the
original basis for belief in the guilt of the suspect was incorrect. Therefore, once
an arrest warrant has been issued, there is no specified time limit in which the
subject must be arrested.

A related timeliness issue is the so-called anticipatory warrant, a warrant issued

with a provision that it be executed upon the occurrence of a triggering condition.
This type of warrant was upheld in the 2006 Supreme Court decision in United
States v. Grubbs.88 In Grubbs, a postal inspector applied for a warrant to search
and seize a videotape containing child pornography ordered by the defendant. The
warrant application specified that the warrant would not be executed unless and
until the parcel ordered by the defendant was delivered, but it did not specify that
the condition had occurred. Because of this, the defendant contested the validity
of the search and seizure, claiming that the anticipatory nature of the application
rendered this warrant a violation of the particularity requirement of the Fourth
Amendment. The Court held that so-called anticipatory warrants do not violate
the Fourth Amendment’s particularity requirement. The Court noted that all
warrants are anticipatory in the sense that probable cause to search amounts to a
prediction that the item sought will still be there when the warrant is executed.
Thus, all warrants require the issuing magistrate to determine that it is now
probable that contraband, evidence of a crime, or a fugitive will be on the
described premises when the warrant is executed. Anticipatory ­warrants merely
contain a triggering condition, which must be met before the warrant is valid.
Return of the Search Warrant
After a search has been made pursuant to a search warrant, a return of the search
warrant must be made to the magistrate who issued the warrant. In most
instances, this return is a separate document. It gives a list of the property seized
in connection with the search. The officer maintains custody and control of the
property seized until the court orders its proper disposition.

Page 302

FYI

A criminal defendant may allege that an officer who applied for a warrant (the
affiant; see Figure 9–1) supplied false information in the application. Under the
usual test for probable cause, it does not matter if the information possessed by an
officer is wrong or false. However, if the officer knew or should have known the
information was false, then the defendant’s allegation may lead to a finding that
the warrant was issued improperly.

The defendant’s claim is governed by the Franks test, named after the case of
Franks v. Delaware.89 Under this test, the burden is on the defendant to show that
false information was supplied by the officer to the magistrate in support of
probable cause. The defendant must show that a false statement was included in
the affidavit that was made knowingly and intentionally, or with a reckless
disregard for the truth. For the defendant’s attack to be successful, the defendant
must also show that such false statement was necessary to the magistrate’s finding
of probable cause. If the defendant is successful, the court will determine whether
probable cause still exists without the false statement. If the court finds that
probable cause is lacking without the false information, then the search warrant
must be voided and the fruits of the search excluded.

Attack on the Search Warrant

The mere fact that a search warrant was issued and property seized pursuant to
the warrant does not prevent an attack from being made by the defendant on the
search warrant. If the attack is successful, the property may be excluded from
evidence, or a conviction may be reversed upon appeal. If an attack is made, the
burden is on the defendant to prove that the search warrant was invalid or
improperly issued, or that some other defect or improper procedure resulted. The
attack may be made on any of several grounds. The defendant may allege that
there was ­insufficient probable cause for the issuance of the search warrant, that
the place to be searched or the thing to be seized was not “particularly” described,
or that it was not properly executed. Examples of improper execution include an
unreasonable breaking and entering without prior request for admission into the
premises and a failure to execute the warrant within the prescribed, or a
reasonable, time.
Reasonable Searches Without
Warrant: Exceptions to the
Warrant Requirement
The second method by which a reasonable search may be made is by an
exception to the warrant requirement. As stated earlier, there are six “well-
delineated exceptions” to the warrant requirement:

1. search and seizure incident to lawful arrest;

2. vehicle searches;

3. inventory searches;

4. consent searches;

5. exigent circumstances searches; and

6. plain view searches.

Specific conditions must be met before a search may be considered

reasonable as an exception to the warrant requirement. Each of these
exceptions will be discussed in further detail.

Search and Seizure Incident to a Lawful Arrest

A search incident to a lawful arrest (SILA) is one of the well-delineated
exceptions to the warrant requirement. Based upon the necessity to protect
the officer and prevent destruction of evidence, the exception no longer
requires either necessity to be shown in a given case—it applies
automatically upon or after arrest. For a search incident to arrest to be
reasonable, the arrest must be a lawful one and the search must be limited to
the following:
Page 303

1. the person of the arrestee and the area within his or her immediate
control (including any containers on the person or within the area);

2. if the arrest is made in a house or other structure, any area adjoining

the room in which the arrest is made in which a person might be
present who could immediately launch an attack upon the arresting
officers (limited to those spaces large enough to conceal a person); and

3. if the arrest is made while or immediately after the arrestee was a

passenger in a vehicle, the passenger compartment of the vehicle and
any containers therein, open or closed. If the arrestee was in a vehicle,
SILA does not apply if the arrestee is, as usually is the case, secured
and does not have access to the vehicle. An exception to this is if the
search of the vehicle is for evidence of the crime of arrest.

Application Case

In Chimel v. California,90 the Supreme Court, for the first time, set forth
some guidelines on the area that may be searched incident to an arrest.
Chimel was arrested in his residence on a charge that he had burglarized a
coin shop. Incident to the arrest, the entire house was searched, including
the attic and garage. The search took between 45 minutes and an hour to
conduct. Items found in the bedroom and sewing room were taken and
introduced against Chimel at his trial. The Supreme Court affirmed that the
arrest was valid but held that the search of the entire residence incident to
that arrest went beyond the area that was within the immediate control of
the accused, and therefore the search and seizure was illegal. Thus, the
items seized were illegally admitted into evidence at trial, and the Court
reversed the conviction. The Court stressed the importance of the warrant
requirement before a search may be deemed reasonable. Accordingly, in
Chimel, it would have been unreasonable to allow officers to search the
entire premises, as Chimel had already been arrested and could not destroy
any evidence or obtain a weapon in the bedroom or sewing room, as these
areas were beyond the defendant’s reach.
If the arrest is made in compliance with a warrant for arrest, it is generally
recognized as lawful with very little difficulty. If the arrest occurs within a
felony suspect’s dwelling, an arrest warrant will, in most instances, be
required. On the other hand, if a suspect is arrested in a public place, no
warrant is required as long as the officer has probable cause to believe that
the suspect has committed a felony or is then and there committing any
crime, no matter how minor, in the officer’s presence.

Page 304

Application Case

In United States v. Robinson,91 decided four years after Chimel, a police

officer arrested a motorist for the offense of driving without a permit. Under
the law of the jurisdiction, the District of Columbia, the officer was required
to arrest the offender. The officer conducted a full search of the offender
incident to the arrest and discovered illegal drugs. In upholding the
accused’s conviction for possession of the drugs, the United States Supreme
Court stated that the facts that the offense was of a minor nature and that the
officer did not have probable cause to believe the arrestee could gain
control of a weapon or destructible evidence were of no consequence. As
long as the officer had probable cause to arrest, had probable cause to
believe the arrestee was driving without a permit, and made the arrest
lawfully, the search incident to the arrest was justified.

A person who has been arrested is subjected to complete loss of personal

liberty. Loss of privacy is so complete that the intrusion of a search incident
to that arrest is either overshadowed by the arrest or minimal in comparison.
In any event, a lawful arrest alone gives the officer authority to search
incident to the arrest—without any additional justification. Accordingly, the
authority to conduct a search incident to arrest does not depend on what a
court may later determine was the likelihood in a particular arrest situation
that weapons or evidence would, in fact, be discovered.

Perhaps the most compelling policy behind the SILA exception is the desire
to create a bright-line rule for law enforcement officers. This is desirable in
the context of searches incident to arrest, so that officer safety and the
preservation of evidence will not be compromised, and so that law
enforcement officers will not have to hesitate under dangerous
circumstances to consider their actions.

Application Case

In Knowles v. Iowa,92 a police officer pulled Knowles over for speeding and
issued a citation. The officer, without Knowles’ consent or probable cause,
conducted a search of Knowles’ car, which yielded a “pot pipe” and some
marijuana. The officer arrested Knowles. Knowles moved to suppress the
“pot pipe” and the marijuana on the ground that, since he had not been
arrested for speeding, the search was not justified by the SILA exception.
On review, the Supreme Court agreed with Knowles, refusing to recognize
a search incident to a citation exception to the warrant requirement. The
Court found that the policy reasons behind the SILA exception, officer
safety and the need to preserve evidence, did not exist in the case of a traffic
citation. First, the threat to officers from issuing a citation is less than that
of a custodial arrest. Second, the need to preserve evidence does not exist at
a traffic stop because, once Knowles had been issued a traffic citation, all
evidence needed for prosecution had been obtained.

Page 305

Scope of the Search: Person of the Arrestee and Area Within

Immediate Control

The general rule is that when a person is arrested, a search may be made of
the person and the area that is under his or her “immediate control.”93 The
search of the person is clear and generally presents few problems. The
extent of the area under the arrestee’s immediate control, or “wingspan,”
however, is not always so easily determinable.

The area within the immediate control of the person arrested was defined in
Chimel as “the area into which an arrestee might reach in order to grab a
weapon or evidentiary items.”94 It has been said that the area within the
immediate control of the arrestee is that area within his or her wingspan.
Since this formulation is also a bit tricky, it may be helpful to return to the
reason behind the rule—to seize weapons by which injury or escape may be
accomplished or to seize evidence that may be quickly destroyed—to
establish some type of criterion.

If an arrest takes place within a home or other structure, a protective sweep

may be made of any area adjoining the room in which the arrest is made.
Thus, arresting officers, without further justification, may also search
“closets and other spaces immediately adjoining the place of arrest from
which an attack could be immediately launched.”95

When a person is arrested, he or she loses all liberty rights. Therefore,

whether a complete search of the person is effected at the time and place of
the arrest or later at the police station is of no consequence. In United States
v. Edwards,96 the arrestee’s clothing containing incriminating evidence was
taken from him in the jail several hours after a late-night arrest. The Court
said, “It is … plain that searches and seizures that could be made on the
spot at the time of arrest may legally be conducted later when the accused
arrives at the place of detention.”97

Application Case

In Maryland v. Buie,98 six officers, armed with an arrest warrant for the
defen­dant, entered the defendant’s house to arrest him for a crime allegedly
committed by the defendant and an accomplice. As the police entered the
premises, they discovered a basement, and, while standing on the ground
floor, an officer ordered everyone to come out of the basement. The
defendant came out of the basement and was arrested and handcuffed. Then
another officer went into the basement to see if anyone else was down there
and, though finding no other person there, discovered evidence related to
the crime in plain view. The Supreme Court upheld the search of the
basement as a “protective sweep,” which was necessary for the safety of the
officers on the premises. The Court defined a protective sweep as “a quick
and limited search of a premises, incident to an arrest and conducted to
protect the safety of police officers or others. It is narrowly confined to a
cursory visual inspection of those places in which a person might be
hiding.”99 An officer needs no justification, other than a lawful custodial
arrest, to “look in closets and other spaces immediately adjoining the place
of arrest from which an attack could be immediately launched.”100

Page 306

However, an officer may only conduct a cursory visual inspection of those

places immediately adjoining the place of arrest, and any search beyond
that requires additional justification, namely, a belief that a person posing a
danger to the officer is in the area to be searched.

Finally, if a custodial arrest takes place while the arrestee is in a vehicle or

has just emerged from a vehicle, an officer may search, as incident to the
arrest, the area immediately within the control of the arrestee. According to
the Supreme Court, this includes not only the passenger compartment of the
vehicle but also any containers, open or closed, in that compartment.101 If
the arrestee who emerged from the vehicle has been secured and is not
within reaching distance of the passenger compartment at the time of the
search, the search is not within the exception.102 However, there is some
question as to whether a locked container is within the Court’s language.
The area subject to search does not extend to the trunk.

Application Case

In the case of New York v. Belton,103 a state trooper arrested the occupants
of a car that had been stopped for a traffic violation. The trooper smelled
burnt marijuana coming from the vehicle and observed an envelope on the
floor of the vehicle that appeared to contain marijuana. The trooper
removed the occupants from the car and arrested them. The trooper then
returned to the vehicle and searched the envelope to verify that it contained
marijuana. He then searched the ­passenger compartment of the car. On the
backseat he found a leather jacket belonging to one of the accused. The
trooper unzipped a pocket and found cocaine. The United States Supreme
Court held that the search was reasonable and concluded that the search was
incident to the lawful arrest in that it was conducted “immediately upon”
arrest, even though the search took place after the accused had been
removed from the vehicle.
Application Case

In the case of Thornton v. United States,104 the Supreme Court applied and
extended the reasoning of Belton. In Thornton, an officer became suspicious
of Thornton, followed him, ran a check on his license plates, and found they
had been issued to a different type of car than the one Thornton was
driving. Before the officer could pull Thornton over, Thornton drove into a
parking lot, parked, and got out of his car. The officer quickly followed,
stopped Thornton, questioned him, and discovered cocaine in the course of
a consensual patdown search. The officer then searched the car and found a
handgun under the driver’s seat. Thornton was charged and convicted of
drug and firearms offenses. On appeal, he claimed that the search that
turned up the weapon was unlawful. The Court rejected the argument,
holding that the vehicle search was proper under Belton. The Court
reasoned that the rationale for SILA did not require Belton to be limited
solely to situations in which suspects were still in their vehicles when
approached by the police. Since Thornton was in “close proximity, both
temporally and spatially,” to his vehicle, the Court concluded that his status
as a “recent occupant” of a vehicle was the same as that of Belton,
justifying the application of SILA to the search of the car he recently exited.

Page 307

Application Case

In the case of Arizona v. Gant,105 the Supreme Court of the United States
clarified the reach of the search incident to arrest exception to the warrant
requirement applied to recent occupants of vehicles. Gant was arrested for
suspected drug-­related crimes after he got out of his car. The arresting
officers handcuffed and locked Gant in the back of a patrol car and then
searched Gant’s car, finding evidence used to convict him of the drug-
related offenses. A majority of the Court held that the search was
unreasonable under Belton, finding that the SILA rationale authorizes
police to search a car incident to a recent occupant’s arrest only when the
arrestee is unsecured and within reaching distance of the passenger
compartment at the time of the arrest. The Court added that circumstances
unique to the vehicle context justify a search incident to arrest when it is
reasonable to believe evidence relevant to the crime for which the arrestee
was arrested might be found in the car.

Application Case

In the case of Riley v. California,106 the Supreme Court of the United States
addressed an equally, if not more important, question regarding the scope of
search incident to a lawful arrest applied to the search of a “person.” The
Court held that cell phone digital data searches exceeded the scope of the
automatic search of the person that is reasonable following an arrest for any
offense. Riley’s car was impounded after he was caught driving with
expired registration tags. Before the car was impounded, the police
performed an inventory search of the vehicle, found two guns, and
subsequently arrested Riley. Riley had his cell phone in his pocket when he
was arrested. A gang unit detective examined the videos and photographs
found in the cell phone. The videos and photographs showed Riley making
gang signs and engaging in other gang-related activity, which were used to
determine whether Riley was gang-affiliated. The Court held that this
violated Riley’s Fourth Amendment right to be free from unreasonable
searches. The Court held that the warrantless search exception following an
arrest exists for protecting officer safety and preserving evidence, neither of
which is at issue in the search of digital data. The Court described cell
phones as minicomputers full of private information, which distinguished
them from the usual items that can be seized from an arrestee’s person, such
as a wallet. However, the Court held that some warrantless searches of cell
phones might be permissible in an emergency: when the government’s
interests are so compelling that a search would be reasonable, which was
not the case here. The majority opinion notably commented, “[M]odern cell
phones, which are now such a pervasive and insistent part of daily life that
the proverbial visitor from Mars might conclude they were an important
feature of human anatomy.”

Page 308

Blood Samples and Driving Under the Influence

The extent to which an officer may search an accused incident to an arrest
has its limitations. This has been particularly true in cases of arrests for
driving under the influence, when blood, breath, or urine samples are
sought for purposes of chemical analysis for alcoholic content. Does
drawing blood go beyond what is authorized in a search incident to a lawful
arrest? The answer to this question was squarely met in Schmerber v.
California.107 In this case, Schmerber was convicted of driving under the
influence of alcohol. Schmerber was arrested in a hospital, where he was
receiving treatment for injuries sustained in a car accident. While in the
hospital, a blood sample was drawn from his body by a doctor at the
direction of a police officer. The blood sample revealed that Schmerber was
intoxicated at the time of the accident and was admitted in evidence.
Although the Supreme Court found the extraction of blood from Schmerber
was a reasonable warrantless search and upheld the conviction, it did so on
grounds other than the SILA exception.

The Supreme Court made clear that searches involving intrusions beyond
the body’s surface involve greater dignity and privacy interests than do
searches of an arrestee’s outer body. With this in mind, the Court held that
there must be some kind of justification for the search other than the mere
fact of a lawful arrest. Specifically, the Court stated that there must be “a
clear indication” that evidence will be found in the blood taken from the
accused. This has been interpreted to mean three things: (1) that the officer
must have probable cause to believe that the blood of the arrestee contains
criminal evidence, namely, a criminally high blood-alcohol level; (2) that
there must be an exigency that evidence will be destroyed if an officer were
required to apply for a search warrant; and (3) that the means and
procedures employed by the officer be reasonable. In the Schmerber case,
the means and procedures employed were reasonable, in that blood was
taken by a physician in a hospital environment according to accepted
medical practices.

In Missouri v. McNeely, 108 the United States Supreme Court, in 2013,

further refined the Schmerber exigent circumstances rule. In McNeely, the
Court held that an individual arrested for driving under the influence of
alcohol cannot be assumed to present an exigency justifying a warrantless
blood testing in all cases. Rather, “exigency in this context must be
determined case by case based on the totality of the circumstances.”109 In
Birchfield v. North Dakota,110 the Court did distinguish between breath and
blood tests, holding that the Fourth Amendment permits warrantless breath
tests incident to arrest for drunk driving.

Page 309

Refusal to Give Samples—Admissible Evidence

Although it has been held in most jurisdictions that giving blood samples,
submitting handwriting exemplars, or speaking for identification is not a
violation of the privilege against self-incrimination, there is no way to force
an accused to furnish this evidence. However, an accused who refuses to
give the evidence should be advised that it is not a violation of the privilege
against self-incrimination, and that there is no constitutional right to refuse
to furnish the requested evidence. Depending upon the jurisdiction, the
accused should also be advised that refusal to give the evidence can be used
against him or her in court.

Except in the case of post-indictment identification lineups, the accused is

not entitled to the assistance of counsel in giving physical evidence.
However, if counsel has been appointed, the accused has the right to have
the attorney present when exemplars are taken. The counsel should be
advised of any contact made with the accused for the purpose of obtaining
physical evidence.

The Vehicle Exception

There are three methods by which an officer may search a vehicle without a
search warrant. The first method is a search incident to arrest, under the
Belton case discussed in the previous section. Another is the inventory
exception, discussed in the next section. The third is the subject of this
section, the vehicle exception to the warrant requirement.

Under the vehicle exception, an officer may search the interior of a vehicle
if he or she has probable cause to believe that the vehicle contains
contraband or fruits, instrumentalities, or evidence of a crime.111 The
rationale behind the vehicle exception is that vehicles are inherently mobile
and, therefore, the opportunity to search is only momentary. If the
occupants of the vehicle are alerted, and if a search warrant is necessary,
then the vehicle might never be found again, let alone the contents of the
vehicle. Because of this rationale, searches are limited to vehicles that are
being used on public ways and vehicles that are in stationary positions but
are readily capable of use on the highway. Another rationale for the vehicle
exception is that people have a lesser expectation of privacy in a vehicle.
This is because a vehicle is exposed to public view on a daily basis112 and
because a vehicle is subject to much regulation by the government, such as
registration, mechanical inspection, ticketing, and in some states smog
checks.113

Application Case

In Collins v. Virginia,114 the United States Supreme Court, in a near-

unanimous decision, held that the vehicle exception to the Fourth
Amendment’s warrant requirement for searches did not justify a police
officer’s invasion of curtilage of a home for a warrantless search of a
motorcycle covered by a tarp and parked in a partially enclosed top portion
of a driveway of the home, even though the officer had probable cause to
believe that the motorcycle was the one that had eluded the officer’s
attempted traffic stop.

Page 310

Application Case

In Florida v. White,115 two months after the police observed White

delivering cocaine in his car, the police arrested him at his work and seized
his car from the parking lot. The arresting officers did not obtain a warrant
to seize the car because they had probable cause to believe that White used
his car as an instrumentality for drug trafficking, making the vehicle itself
forfeitable contraband. During a subsequent inventory search, the police
found two pieces of rock cocaine in the ashtray. White was convicted of
possession of crack cocaine. Upon review, the Supreme Court upheld the
seizure of White’s car without a warrant, stating that the Fourth
Amendment does not require the police to obtain a warrant before seizing
an automobile from a public place when they have probable cause to
believe the automobile itself is contraband.

The vehicle exception has very expansive applications. First, the search of
the vehicle may take place away from the scene, for example, at a police
station. The police may seize the car without searching it, move it to
another location, and search it there, regardless of the reason for doing so.
All of this may be accomplished without a warrant.116 Once the police seize
the vehicle, the probable cause to search that allowed them to seize it
originally may continue indefinitely.117 At some point, the police retention
of the vehicle may continue so long that the seizure becomes permanent. In
that case, the police may search the vehicle pursuant to the inventory
exception (discussed in the following section), if applicable. It may seem
that, once the police decide to seize the vehicle and search it elsewhere, the
vehicle lacks mobility and the search no longer meets the main rationale for
the exception. However, the Supreme Court has stated that the vehicle
retains its mobility wherever it may be taken by the police. Also note that
the vehicles within this exception include all motorized vehicles, such as
trucks, airplanes, motor homes, campers or trailers attached to cars, boats,
and houseboats.

Application Case

In California v. Carney,118 the defendant was convicted of possession of ­-

marijuana for sale. The police had probable cause to believe that the defen­-
dant was selling drugs for sex from inside a motor home parked in a public
lot. Two officers, without a warrant or the defendant’s consent, searched the
motor home and found marijuana. The Supreme Court upheld the search,
stating that the motor home was inherently mobile and the facts that it
might be used as a home and was much larger than an ordinary car were of
no consequence.

Page 311
During a lawful vehicle exception search, an officer may search any
containers found inside the vehicle. The officer must have probable cause to
believe the vehicle contains some seizable evidence and, in certain
instances, may only have probable cause to search a certain area of the
vehicle. If a container is discovered during a vehicle exception search, its
contents may be examined only if the container is capable of holding the
object of the search; this limitation does not apply to SILA searches, as
these searches do not require probable cause. For instance, if an officer
observes a suspect place a large bag, which the officer has probable cause to
believe contains ten pounds of marijuana, in the trunk of a car, the officer
may search the trunk and examine the contents of the bag. But the officer
may not search other areas of the car, unless the officer has probable cause
to believe such areas contain other seizable objects. Furthermore, if, during
the search of the trunk, the officer discovers a small pocket pouch, he or she
may not examine its contents, since such a pouch is incapable of holding
ten pounds of marijuana.

Application Case

In Wyoming v. Houghton,119 a police officer stopped a motorist for speeding

and driving with a faulty brake light. While questioning the driver, the
officer noticed a hypodermic syringe in the driver’s shirt pocket. When
asked why he had the syringe, the driver said he used it to take drugs.
Houghton was one of two female passengers in the vehicle and, when she
left the car upon back-up offi­cers’ instructions, she left her purse on the
backseat. The original officer went back and searched the car for
contraband. He picked up Houghton’s purse, opened it, and found a syringe
and methamphetamine in it. Houghton was charged with possession of
methamphetamine. She moved to suppress the syringe and the
methamphetamine found in her purse. The Supreme Court upheld the
search, stating that where there is probable cause to search a car for drugs,
as in this case, the police may open any and all containers, “without a
showing of individualized probable cause for each one.”

Inventory Searches
The third method by which an officer may search a vehicle without a search
warrant is an inventory search. In fact, most jurisdictions require neither a
warrant nor probable cause before a lawful inventory search may be
conducted. The rationales behind the inventory exception are that such
searches protect the owner’s property while it is in police custody, protect
police against claims of loss or theft, and protect the police and others from
dangerous items that might be hidden inside. Inventory searches are not
limited to vehicles but extend to persons as well.

Police departments have established standard inventory search procedures

for vehicles and other property lawfully in police custody (impoundment).
These procedures are designed to protect the rights against unreasonable
searches and seizures guaranteed in the Fourth Amendment and are an
attempt to prevent “a general, exploratory rummaging” in people’s
belongings. Some leeway is allowed, such as when department procedures
provide searching officers with some discretion as to which containers in
the car will be searched.

Page 312

The same rules apply to inventory searches of persons who are lawfully
within police custody. The search must be conducted pursuant to routine or
standard procedures incident to booking and jailing. The person who is
searched must be lawfully in police custody, meaning that he or she has
been arrested lawfully and is expected to be jailed for a period of time.

Application Case

In Flippo v. West Virginia,120 the police received a 911 call from Flippo that
he and his wife had been attacked in their hotel room. The police arrived at
the hotel and found Flippo’s wife murdered. After Flippo had been taken to
the hospital for treatment of his injuries, the police began to process the
crime scene by taking photographs, collecting evidence, and searching the
contents of the room, including a photograph contained in a closed
briefcase belonging to Flippo. At trial, the photograph was used to establish
motive that Flippo killed his wife because she was having an affair with the
man in the photograph. The Supreme Court, reviewing his conviction,
found there is no crime scene exception to the warrant requirement. Hence,
the Court found that the evidence found at the scene should not have been
admitted against Flippo at his trial.

Consent Searches
A consent search is another exception to the warrant requirement of the
Fourth Amendment, as well as an exception to the probable cause
requirement. Therefore, an officer needs no justification to conduct a search
pursuant to valid consent. If a person gives consent to be searched or to
have his or her property searched, logically, that person has no basis to
question the legality or reasonableness of the search at a later time.
However, a number of conditions affect the giving of the consent that, in
turn, may affect the legality of the search. The validity of consent turns on
whether consent was voluntarily given, taking into account all of the
surrounding circumstances. Moreover, the person who gives consent must
be in control of the premises or property searched, meaning that he or she
has authority, or at least apparent authority, over the property. If a valid
consent is given for a search, any attack on a seizure of property pertinent to
a crime is not effective, unless the search was extended beyond the scope of
the consent.

Application Case

In Schneckloth v. Bustamonte,121 a police officer stopped a car when he

observed that one headlight and its license plate light were burned out. Six
men were in the vehicle, one of whom, Joe Alcala, produced a license and
explained that the car belonged to his brother. The officer asked to search
the car, and Alcala replied, “Sure, go ahead.” In the trunk, the officer found
three checks that had been stolen from a car wash. Those checks were
admitted at trial against another of the passengers, Bustamonte, who was
convicted. Bustamonte challenged the search, claiming that the consent was
invalid because no one informed Alcala that he had the right to refuse
consent.

Page 313
The Supreme Court held that, to prove consent, the prosecution must prove
that the consent was voluntarily given, that voluntariness is a question of
fact to be determined from all the circumstances, and that the subject’s
knowledge of a right to refuse is a factor to be taken into account. However,
the Court specifically stated that the prosecution is not required to
demonstrate the subject’s knowledge of the right to refuse consent as a
prerequisite to establishing a voluntary consent and upheld the conviction in
this case.

The prosecution has the burden of showing that consent was, in fact,
voluntarily given and not the result of coercion or duress. This does not
mean that the prosecution must show that the accused had knowledge of his
or her right to refuse consent, or that the accused was advised of the right to
refuse consent by the police. Whether a consent was voluntarily given may
depend on many things. Any showing that the consent was induced by a
threat, promise, duress, fear, coercion, or deceit will affect the validity of
the consent.

Application CaseS

In Ohio v. Robinette,122 a deputy pulled Robinette’s car over for a speeding

violation. The deputy checked Robinette’s license, issued a verbal warning,
and gave his license back to him. Before Robinette drove away, the deputy
asked Robinette whether he had any contraband in his car and if he could
search it. Robinette consented to a search, which revealed a small amount
of marijuana and a pill that turned out to be an unlawfully possessed
controlled substance. R ­ obinette argued that his consent to search the car
was per se involuntary because the officer did not inform him that he was
free to go when he gave the consent. The Supreme Court rejected this
argument, holding that the Fourth Amendment only requires that an officer
obtain consent to search in a reasonable manner and that failure to inform a
detainee that he or she is free to go before gaining consent does not, by
itself, vitiate that consent. Similarly, in United States v. Drayton,123 the
Court held that the Fourth Amendment does not require a passenger asked
to consent to the search of her luggage and her person during a
suspicionless bus sweep to be advised of her right to refuse permission in
order for her consent to be voluntary.
Whether an officer’s conduct falls within the standards of valid consent
depends upon all of the facts and circumstances. The test for a valid consent
is whether, under the totality of the circumstances for consent, the accused
voluntarily consented. The totality of the circumstances includes
consideration of the characteristics of the person giving consent, such as
age, education, emotional state, and mental condition, as well as whether
there was a show of force by the officer requesting consent. The officer’s
conduct and the characteristics of the individual giving consent, considered
together, may create the inference that the person’s free will was
overwhelmed by the officer’s conduct. If so, the consent is invalid.

Page 314

Application Case

Florida v. Bostick,124 discussed previously in this chapter in defining

seizure of the person, also dealt with the doctrine of consent. In the case,
two officers from the Broward County, Florida, Sheriff’s Department,
pursuant to a drug interdiction plan, routinely boarded a bus en route from
Miami to Atlanta during a stopover in Fort Lauderdale. Their purpose was
to try to identify law violators by picking persons at random, or based on
vague suspicion, and asking them potentially incriminating questions. The
officers wore badges and insignia, and one held a zipper pouch containing a
plainly visible pistol. Without articulable suspicion, the officers picked out
the defendant and asked to inspect his ticket and identification. Noting
nothing unusual, the officers nonetheless persisted in their questioning,
ultimately asking for consent to search the defen­dant’s bags. Bostick
consented, and the officers found cocaine in his bag. Bostick was arrested
and charged with trafficking in cocaine. The Florida Supreme Court held
that, because the encounter took place in the close space of a bus, Bostick
felt he had no choice but to consent to the officers’ request. The United
States Supreme Court disagreed. In upholding Bostick’s conviction, the
Court held that the question of whether a person would feel free to refuse
had to be decided as a matter of fact, based on a totality of the
circumstances, not merely because the encounter took place on a bus.
It is the responsibility of the trial judge to determine whether the consent
was voluntarily given. The judge will make a decision from the facts
presented by the prosecution about the manner in which the consent was
obtained. Thus, the c­ ircumstances surrounding the consent are most
important to the prosecution—the admissibility of the physical evidence
will be completely dependent upon the validity of the consent. If there is
doubt about the voluntariness of the consent, the search will be considered
unreasonable, and the exclusionary rule will be triggered.

Form of Consent

No formal wording is necessary for a consent to be considered freely and

voluntarily given, but there should be some affirmative response, not
merely a failure to object to the search. Silence alone is not deemed to be a
consent. It is possible, under the totality of the circumstances, that silence
followed by some action or gesture would be tantamount to consent. For
example, if an officer should go to a house and ask the occupant for
permission to search the premises, and the occupant steps back and motions
the officer into the building, such a gesture would be considered a consent
to search.

Page 315

Although consent may be given either orally or in writing, when possible, it

is highly desirable that the consent be reduced to writing and signed by the
person giving it. This does not preclude the person from later alleging that
consent was not given for the search, but it does provide some evidence that
the matter was discussed and that an affirmative response was given. It is
suggested that the following preamble be made in the first paragraph of a
written consent to search: “I, (name of person giving consent), give my free
and voluntary consent to have a search made of the premises located at
(address of place to be searched). I give this consent without any threat or
promise being made to me.” (Note: In jurisdictions where a warning of the
right to withhold consent must be given, the following should also be
included in the written consent: “I have been advised of my constitutional
right to refuse to permit a search to be made.”) This written consent should
be signed and dated by the person giving it and witnessed by someone other
than the officer receiving it. Whether any additional information is included
in the written consent should be left to the discretion of the officer at the
time.

Consent is a right of the person giving it. It may be limited in area, scope, or
purpose, and it may be withdrawn at any time. If consent is withdrawn, the
officer will have to resort to some other authority to search further, such as
obtaining a search warrant or making an arrest. Otherwise, the officer may
be completely stymied in the continuation of the search.

The fact that consent to search was freely given does not permit continual
and repeated invasion of the premises thereafter. How soon the search has
to be made after consent is given depends largely upon the circumstances.
As a practical matter, the search should be made as soon as possible,
because the consent may be withdrawn at any time. Although the courts
have not established any prescribed time within which a search must be
made once consent is given, an undue delay between the consent and the
search might lead the court to conclude that the police abandoned the search
effort and require a new consent for the search to continue.

Who May Give Consent

If the search is to be of a person, the person who is to be searched is the one

to give the consent. In the case of a person of unsound mind or a child too
young to understand the meaning of the request, consent may be given by
the guardian or parent. If a search is to be made of a certain property or
premises, consent must be given by one who has, or reasonably appears to
have, common authority over the property or premises for most purposes. It
is not always easy to determine who has this authority.

The validity of a third party’s consent depends on whether the third party
and the defendant have common authority over the property or premises
searched. Common authority has been defined by the Supreme Court as
mutual use of the property searched by persons generally having joint
access to or control over the property for most purposes.125
If the place to be searched is a residence, the occupant of that residence is
the proper person to give the consent. If there is more than one occupant of
the residence, any one of the occupants present at the time may give
consent to a search. However, if more than one occupant has common
authority and one of the occupants refuses consent, then the police cannot
enter. This was the holding in the 2006 Supreme Court decision in Georgia
v. Randolph.126 The occupant giving consent, however, must have common
authority, for most purposes, over the area to be searched. For instance, the
spouse of the accused would most likely have common authority over the
couple’s dwelling, but roommates with separate rooms may have common
authority over portions of their common dwelling but not over their separate
sleeping quarters.

Page 316

The rule for testing third-party consent was first established by the Supreme
Court of the United States in the case of United States v. Matlock.127
Matlock was arrested in the front yard of a house in which he was living
with his girlfriend. The girlfriend allowed the officers to search a bedroom
of the house that she and the defendant shared. The Court held that the
consent given by the defendant’s girlfriend was valid. The girlfriend and the
defendant had joint access to and control over the bedroom searched, since
the bedroom was mutually used by them for sleeping purposes. In addition,
the Court emphasized that common authority does not depend on whether
the person giving consent has a property interest in the property searched,
although it may be a factor in determining the validity of consent. The
primary rationale is that, by sharing his or her privacy with another person,
the defendant assumes the risk that that person will voluntarily consent to a
search.

Apparent Authority

In 1990, the case of Illinois v. Rodriguez128 established the doctrine of

“apparent authority,” relieving the officer from being penalized for perfectly
reasonable conduct. In Rodriguez, a woman told police that she had been
beaten in a particular apartment by the defendant. The woman also told the
police that the defendant was now asleep in the apartment, and she offered
to let the police into the apartment with her key, so that they could arrest
him. In addition, the woman referred to the defendant’s apartment as “our”
apartment and said that she had clothing and furniture in the apartment.
With her consent, the police entered the defen­dant’s apartment and observed
contraband in plain view, which was seized. It later turned out that,
although the woman once lived in the apartment, she had not been living
there for a number of weeks preceding the incident.

MYTH FACT
If an officer goes If a person giving consent is unaware that he or she is
undercover and giving such consent to an officer, the consent is still
obtains consent voluntary, since no coercion is present. The consenting
to search, then person assumes the risk that the individual with whom he
the consent is or she is dealing is actually a friend who will not betray
not voluntarily his or her trust, rather than an undercover government
given. agent.

Page 317

The Supreme Court held that the search was reasonable. The Court
emphasized that the Fourth Amendment prohibits unreasonable searches
and seizures. Therefore, what is required of police officers when they make
factual determinations “is not that they always be correct, but that they
always be reasonable.” By stressing the importance of the “reasonableness”
requirement, the Court laid the foundation for the apparent authority
doctrine. Under this doctrine, a consent search will be deemed reasonable if
the facts available to the officer at the moment of entry would cause a
reasonable person to believe that the consenting party had common
authority for most purposes over the premises or property.

Scope of Consent: Plain View

If consent is voluntarily given to search a premises for a particular object

and during the search another item is observed in plain view, that item is
admissible evidence if it was found within the scope of the consent given.
For example, if a person should give consent for an officer to search a
house for television sets and in making the search the officer should find
other stolen electrical appliances in plain view, these appliances would
normally be admissible in evidence, as their discovery would be within the
scope of the consent. However, if in the same search a stolen gun were
located in a small dresser drawer, the gun would probably be excluded
because it was not in plain view. Searching the small dresser may be
considered by the court as going beyond the scope of the consent. It would
be a stretch of the imagination to expect to find a television in a small
dresser drawer.

Exigent Circumstances Searches and Seizures

Another exception to the warrant requirement is an exigent circumstances
search and seizure. By definition, an exigency is a situation that requires
immediate ­action—it will not be deemed unreasonable for an officer to
search without a warrant under exigent circumstances. Unlike a consent
search, however, an officer must have probable cause to search under this
exception to the warrant requirement. A variety of situations may constitute
exigent circumstances, and the more important ones will be discussed in
further detail in this section.

Four exigencies were specifically recognized by the United States Supreme

Court in the case of Minnesota v. Olson:129

1. hot pursuit of a fleeing felon;

2. imminent destruction of evidence;

3. the need to prevent a suspect’s escape; and

4. the risk of harm to the police or to others.

Hot pursuit is limited to a situation in which a suspect is followed from the

point of the offense to the destination in a continuous transaction. For
example, after a robbery of a cab company office, taxi drivers followed the
perpetrator from the office to a residence. One driver notified the
company’s dispatcher, who relayed the information to the police who were
en route to the scene of the robbery. Within minutes, the police arrived at
the residence and their warrantless entry into it was declared lawful.130

Page 318

As discussed in the “Blood Samples and Driving Under the Influence”

subsection of this chapter, imminent destruction of evidence may be an
exigency justifying a warrantless search. In the Schmerber case, discussed
in the just-­mentioned subsection, the police had probable cause to believe
that the defen­dant had an elevated blood-alcohol level, which would
dissipate if the officers were required to take the time to obtain a warrant.
Therefore, the warrantless intrusion into the defendant’s body was a
reasonable search because it would have been impractical for the officers to
obtain a search warrant. And, as held in Missouri v. McNeely,131 the finding
of exigency must be made in each individual case based on a totality of the
circumstances. Not all DUI cases can be presumed to present such an
exigency. The exigency of imminent destruction of evidence may also
justify the entry into and search of a dwelling if the police have probable
cause to believe that criminal evidence is within the dwelling and will be
destroyed if immediate action is not taken. To justify such an entry, the
officer must be able to articulate facts that would lead a person of
reasonable caution to believe that the imminent destruction of evidence is
threatened.

Application Case

In Vale v. Louisiana,132 officers failed to articulate such facts as would

justify an exigent circumstance entry in a home to prevent destruction of
evidence. In Vale, the officers possessed two warrants for the defendant’s
arrest. While the officers were outside the defendant’s residence, they
observed the defen­dant sell narcotics on the street corner to another person
in a car parked on the street. The officers promptly stopped the car and
arrested both the driver and the defendant, Vale. The officers then entered
the defendant’s residence and discovered narcotics in a bedroom. The
United States Supreme Court found the search unlawful, as no exigency
existed to justify the search. The Court noted that the officers had no reason
to believe there was anyone else in the defendant’s residence who could
gain control of and destroy the narcotics. The Court held that an arrest on
the street, standing alone, cannot provide its own exigent circumstances so
as to justify a warrantless search of the arrestee’s house.

Another exigency that has been recognized by the Supreme Court is the
need to prevent a suspect’s escape. An officer may enter a home or other
dwelling and search for a suspected felon who the officer has probable
cause to believe is p­ resently within the home and will escape if immediate
action is not taken.

Application Case

In Illinois v. McArthur,133 Mrs. McArthur tipped off two police officers

about her husband’s marijuana stash under the couch. One officer locked
the door to the home while the other went to obtain a search warrant. The
remaining officer refused to allow Mr. McArthur to enter the home without
accompanying him. Two hours later, the other officer returned with a
warrant and both searched the home. The officers found a marijuana pipe
and a small amount of marijuana. Mr. McArthur moved to suppress the
evidence on the ground that the pipe and the marijuana were fruits of the
poisonous tree, namely, the unlawful restraint of him and of his house
during the two-hour period while the warrant was being obtained. The ­-
Supreme Court found that the officers’ conduct was reasonable under the
exigent circumstances exception in light of the circumstances, which was a
reasonable belief that Mr. McArthur would destroy the evidence before the
police could obtain the warrant. The Court intimated that search or a seizure
is reasonable as long as law enforcement imposes a limited and tailored
restraint to secure law enforcement needs while protecting an individual’s
privacy.

Page 319

Finally, an exigency justifying the search of a person or a home is the risk

of harm to the police or to others, either inside or outside the dwelling.
Again, the officer must have probable cause to believe that a risk of harm
exists, such as a situation in which a bullet is fired through the floor of an
apartment, injuring a person in the apartment below. Police entry into the
apartment without a warrant to search for the shooter, other victims, and
weapons is justified as an exigency.134

Scope of Exigent Circumstances Search

The scope of a search conducted under exigent circumstances will be

defined by the emergency or exigency that justifies the search. A discussion
of the ­Warden v. Hayden135 case will illustrate the parameters of an exigent
circumstances search. In Warden, the officers had probable cause to believe
that a suspect who was involved in an armed robbery had entered a
particular dwelling (it turned out to be his mother’s home) moments earlier.
The officers immediately went to the dwelling in question and were allowed
to enter without protest by a woman living in the home (who turned out to
be the suspect’s mother). A number of officers spread out through the whole
house, including the basement, in order to locate the defendant. The
defendant was found and arrested in his own room, where he was faking
sleep. Simultaneously, other officers discovered and seized items related to
the armed robbery. Particularly, a shotgun and pistol were discovered in a
bathroom toilet, which was opened because of the noise of running water.
Clothing fitting the ­description of that worn by the robber was found in a ­-
basement washing machine by an officer, and various other items were
found under the defendant’s bed mattress and in a bedroom drawer. The
Supreme Court found the full-scale search of the house reasonable because
“exigencies of the situation made the [search] i­mperative.”136 Essentially,
the officers were in hot pursuit of an armed and dangerous felon and “only a
thorough search of the house for persons and weapons could have ensured
that [the defendant] was the only man present and that the police had
control of all weapons which could be used against them or to effect
escape.”137

Page 320

Application Case
The case of Welsh v. Wisconsin138 is illustrative of the limits upon the
exigent circumstances exception to the warrant requirement. Welsh was
driving erratically and ran off the road. By the time the police arrived at the
scene where his car had run off the road, Welsh had departed on foot. After
checking the vehicle’s registration, the police found Welsh’s address and
went to his home. The offi­cers entered his home and found him in bed.
They arrested him and took him to get a blood-alcohol test. The Supreme
Court found that the entry into the home was not justified by exigent
circumstances and therefore Welsh’s conviction was overturned. Under
Wisconsin law, first offense driving under the influence (DUI) was, at the
time, classified as a noncriminal, civil forfeiture offense. Hence, the Court
rejected the state’s claim of exigency due to dissipating evidence of DUI as
a basis for the warrantless entry into the home.

Plain View Doctrine

As another exception to the warrant requirement, the plain view doctrine is
intertwined with all of the other methods of conducting a reasonable search.
Under the plain view doctrine, an officer may seize an object without a
warrant if

1. the officer observes the object from a lawful vantage point;

2. the officer has a right of physical access to the object from the lawful
vantage point; and

3. the nature of the object is immediately apparent as an article subject to

seizure (i.e., contraband or a fruit, instrumentality, or evidence of
a crime).

The first requirement, that the officer observe the object from a lawful
vantage point, means that the officer cannot violate the Fourth Amendment
in arriving at that vantage point. Four methods exist by which an officer
may arrive at the vantage point lawfully:

1. The officer may observe the object during a search pursuant to a search
warrant. For example, the officer may be executing a search warrant
 for narcotics in the defendant’s garage when the officer discovers
illegal AK-47 rifles.

2. The object may be viewed by the officer while the officer executes an
arrest warrant in the arrestee’s home.

3. The officer may discover the object while conducting a search justified
under an exception to the warrant requirement, for example. The
object may be viewed by an officer during a lawful consent search or a
search justified by exigent circumstances.

4. The object may come into view during police activity that does not
constitute a search or seizure, such as entering the house to take a
report for a missing child.

Page 321

The second requirement for the plain view exception is that the officer must
have a right of physical access to the object. In essence, the officer must be
able to reach out and grab the object. For example, assume an officer
walking down the street observes through an open window a marijuana
plant on a living room table. The officer may be at a lawful vantage point
on the street, and the observation alone does not constitute a search, but the
officer does not have a right of physical access to the dwelling containing
the plant. The observation would constitute probable cause for a search
warrant but would not justify a warrantless seizure of the plant.

FYI

The plain view doctrine is not limited to observations made with the sense
of sight. The Supreme Court has also established a plain feel doctrine.
Under the plain feel doctrine, an officer may seize an object without a
warrant from the person of the defendant while conducting a lawful stop
and frisk (stop and frisk will be discussed in detail in the following section).
For a plain feel seizure to be upheld, the officer conducting the patdown
must immediately recognize the object as contraband or a fruit,
instrumentality, or evidence of a crime. The officer may not manipulate the
object, e.g., by squeezing, in order to determine its incriminating nature. In
addition to the plain feel doctrine, it could quite easily be argued that there
should be a plain smell doctrine. Many officers are trained in detecting the
smell of drugs, such as ­marijuana. Should an officer smell an odor that is
immediately recognizable as a narcotic, and the officer is at a lawful
vantage point with a right of physical access to the narcotic, then a
warrantless seizure of the narcotics would be reasonable.

Finally, the third requirement dictates the object’s incriminating nature must
be immediately apparent to the officer who views it. This requirement is
satisfied if the officer has probable cause to believe that the object is
contraband or a fruit, instrumentality, or evidence of a crime. In the
previous example, the officer must have sufficient experience and
knowledge to immediately recognize the plant as being marijuana.

Application Case

In Bond v. United States,139 a Border Patrol agent boarded a bus in Texas to

check the immigration status of its passengers. Satisfied that all of the
passengers were lawfully in the United States, the agent walked down the
aisle of the bus and squeezed the luggage in the overhead compartments,
feeling a brick-like object in Bond’s bag. Bond admitted to the agent that
the bag was his and agreed to allow the agent to open it. The agent opened
the bag and found a brick of methamphetamine. Bond was charged with
offenses relating to the possession of the drugs and moved to suppress the
evidence obtained by the agent, claiming the agent conducted an illegal
search. The trial and appellate courts rejected Bond’s argument, but the
Supreme Court of the United States disagreed and reversed his convictions.
In short, the Court found that the agent’s manipulation of the bag, which led
to his further interaction with both the bag and Bond, which ultimately led
to the drugs, was a search. It gave the agent sufficient information to
constitute a search. Bond had an expectation of privacy in his bag and a
reasonable expectation that his bag might be handled by other passengers.
The agent’s squeeze exceeded “the casual contact [Bond] would have
expected from other passengers” when he felt the bag in an exploratory
manner, a manner that was more intrusive than a reasonable person would
expect. A probing physical manipulation is a search and presumed
unreasonable without a warrant.

Page 322

Application Case

In Arizona v. Hicks,140 a bullet was fired through the floor of the

defendant’s apartment into the apartment below. The officers entered the
defendant’s apartment under exigent circumstances to search for the
shooter, other victims, and weapons. While inside, an officer observed
expensive stereo equipment that seemed out of place in the defendant’s run-
down apartment. The officer moved and turned over the record player to
observe and record the serial number for the purpose of determining
whether the player was stolen. The officer checked with his headquarters
and was advised that the stereo was, in fact, stolen. He then seized the
equipment.

The United States Supreme Court invalidated the search on the ground that
the officer lacked probable cause to believe that the stereo equipment was
stolen when he first observed it. Moving the turntable to view the serial
number constituted another search, which required additional justification.
Search and Seizure on Less Than
Probable Cause: Stop and Frisk and
Reasonable Suspicion in Other
Circumstances
Prior to 1967–1968, the only ways a search and seizure would be found valid
under the Fourth Amendment were if the officer acted with probable cause and a
warrant or with probable cause and an exception to the warrant requirement.
These traditional principles of probable cause, the warrant requirement, and a
few, well-delineated exceptions were also applicable to the states through the
Fourteenth Amendment.

In 1968, the Supreme Court decided the seminal case of Terry v. Ohio.141 The
Court adopted a new search and seizure standard when it found a law officer’s
search and seizure to be justified on less than probable cause and without a
warrant. It is significant that, six months before Terry, in a noncriminal setting,
the Court suggested that the determination of “reasonableness” of searches and
seizures involves “balancing the need to search against the invasion which the
search entails.”142

In the Terry case, an officer with more than 30 years’ experience became highly
suspicious, but lacked probable cause, after observing three men who appeared to
be casing a store for a robbery. The officer approached the suspects, asked for
their names, and, receiving an incomprehensible reply, patted down the outside of
the defendant’s clothing. As a result of the patdown, the officer felt a gun in a
pocket of the defendant’s overcoat, which the officer then pulled out. He then
arrested the defendant. The defendant was prosecuted and convicted for carrying
a concealed weapon.

The United States Supreme Court upheld the defendant’s conviction despite the
fact that the officer lacked probable cause to make an arrest when he first stopped
and frisked the defendant. In determining the reasonableness of the officer’s
conduct, the Court balanced the government interests in effective crime
prevention and officer safety against the governmental intrusion on the
individual’s security. The Court found that the governmental interests outweighed
the individual’s interests, primarily for the reason that the intrusion on the
individual’s privacy was less than that of a full-scale search and seizure.
Consequently, the justification to conduct less than a full-scale search and seizure,
i.e., stop and frisk, need not rise to the level of probable cause. The Court set
some guidelines by which an officer may conduct a stop and frisk by stating:143

Page 323

We merely hold today that where a police officer observes unusual conduct
which leads him reasonably to conclude [what has come to be known as
“reasonable suspicion”] in light of his experience that criminal activity may
be afoot and that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this behavior he
identifies himself as a policeman and makes reasonable inquiries, and where
nothing in the initial stages of the encounter serves to dispel his reasonable
fear for his own or others’ safety, he is entitled for the protection of himself
and others in the area to conduct a carefully limited search of the outer
clothing of such persons in an attempt to discover weapons which might be
used to assault him.

Terry was the first criminal case in which this new “balancing” test was applied.
The result was authorization of a search and seizure on less than probable cause.
In this case, the officer’s conduct was the stop and frisk of a suspect whom the
officer suspected was about to commit a crime. The circumstances of this contact,
if governed by the traditional pre-existing law, would not have permitted any
intervention by the officer. In Terry, the Court found that the officer’s conduct
was indeed a seizure and search of the person. However, the Court also found the
officer’s conduct was not as intrusive as a full-scale arrest or full-scale search.

In order to investigate suspicious behavior, an officer is justified in a wide variety

of situations, with less than probable cause and without a warrant, to detain the
suspect temporarily to make reasonable inquiry to confirm or dispel the suspicion.
Moreover, if the officer has a suspicion that the suspect might be armed and
dangerous, the officer may conduct a patdown search of the suspect to ascertain
whether the suspect has a weapon that could harm the officer or others. The
officer, in order to act in these ways, needs only reasonable suspicion.
Reasonable suspicion, being a lesser standard than probable cause, does not
require as much evidence of criminal wrongdoing as probable cause—nor is it
necessary that the officer’s information be as reliable as that required for probable
cause.

Although the Terry case involved a combined stop and frisk, later decisions of the
Supreme Court have extended the principle to stops of suspects on less than
probable cause in the absence of an officer’s belief that the person is armed and
dangerous. Thus, an officer may temporarily detain, or stop, a suspect if the
officer possesses reasonable suspicion, but not probable cause, that a particular
individual is about to commit, is committing, or has committed a crime. During
this temporary detention, the officer may question the suspect in order to confirm
or dispel that suspicion. It is important to note that, unlike probable cause,
reasonable suspicion does not require that the officer know with particularity the
type of crime ­committed—particularity is only required with respect to the
identity of the individual.

Page 324

If the officer has a reasonable suspicion that the suspect is armed and d­ angerous,
then the officer may conduct a limited patdown search of the person’s outer -­
clothing—a frisk—in an attempt to discover weapons. In those situations when an
officer reasonably suspects that a particular person is engaged in a crime and is
armed and dangerous, the officer may detain the person as well as conduct a
patdown search of the person. The officer’s power to stop and frisk a suspect is
not unlimited. One of the serious issues is just how long a suspect can be detained
without probable cause and have the action still be considered within the scope of
reasonable police conduct. Another question is how far, if at all, an officer may
go beyond a patdown of the outer clothing of a suspect. The main issue to be
considered, then, is determining the scope of police action on less than probable
cause under the balancing test announced in Terry.

The Permissible Scope of Stops

An officer may stop an individual based on a reasonable suspicion that the person
is engaged in some criminal activity or is armed and dangerous. The detention
cannot rise to the level of an arrest, since probable cause is required for that
action. Detention, justified on the basis of reasonable suspicion, constitutes a
seizure, but, because it is less intrusive than an arrest, the level of required
justification is lower than the probable cause that is necessary for an arrest.
In determining whether an investigative detention based on reasonable suspicion
rises to the level of a de facto arrest (an arrest in fact), a number of factors must
be considered:

1. the length of the detention, i.e., whether the detention lasted longer than was
necessary to clarify the circumstances for which the person was stopped;

2. whether the person was forcibly removed from home or another place that he
or she was entitled to be; and

3. whether the officer pursued the investigation in a reasonable and diligent

manner, i.e., utilized a method of investigation that was likely to confirm or
dispel the officer’s suspicions quickly.

What Is Reasonable Suspicion?

The short definition of reasonable suspicion is more than an inarticulable hunch

and less than probable cause. As the Supreme Court held in Terry, reasonable ­-
suspicion exists when a law enforcement officer has a reasonable, articulable -­
suspicion that criminal activity is afoot. Factors such as location and a suspect’s
behavior are used to determine reasonable suspicion. In Illinois v. Wardlow,144
Wardlow fled upon seeing a caravan of police vehicles patrolling an area known
for heavy drug trafficking. Two officers saw Wardlow in flight, gave chase, and
caught up with him. The officers frisked Wardlow for weapons and found a
handgun. Wardlow was convicted of unlawful use of a weapon by a felon. He
moved to suppress the gun, claiming that the officer did not have reasonable
suspicion sufficient to justify an investigative stop under the Terry doctrine. The
trial court denied the motion, but the Illinois appellate and supreme courts
reversed, and the state took the case to the United States Supreme Court. The
Supreme Court held that the officers did have a reasonable suspicion that criminal
activity was afoot. The Court credited the totality of the circumstances, including
Wardlow’s headlong flight upon seeing the officers and the fact that the
surrounding area was known for heavy narcotics trafficking, as creating
reasonable suspicion.

Page 325

Law enforcement professionals may assess the totality of the circumstances and
rely on their training and experience to determine whether reasonable suspicion
exists. A case that contributes greatly to the understanding of this is United States
v. Arvizu.145 There, a Border Patrol agent investigating sensor activity reported in
an area known for drug smuggling observed a van known to the officer as the
type of vehicle used for smuggling. The van was traveling on a route commonly
used by drug smugglers to circumvent a Border Patrol checkpoint. The agent
pulled off the road to observe the van and, as the van approached, the agent
observed the driver appearing stiff and seeming to avoid looking at the agent. In
this remote area, the agent thought it odd that the driver did not wave at him, as
was the custom. There were three children in the backseat, and the agent noticed
that two of the children’s knees were unusually high, as if their feet were propped
up by something on the floor. The agent then followed the van; all three children
put up their hands and waved at him in an abnormal manner, acting as though
they were being instructed. The agent radioed for a registration check, learning
the vehicle was registered to a residence four blocks north of the border in an area
notorious for alien and drug smuggling. Finally, when the agent observed the
driver signal a turn, change his mind, and then suddenly turn at the last turnoff
that would allow the van to avoid the checkpoint, the agent made a vehicle stop.
He asked the driver if he could search the car. The driver consented, and the agent
found nearly 138 pounds of marijuana under the passengers’ feet and in the back
of the van.

Arvizu was charged with federal drug crimes for possession of the marijuana and
moved to suppress the evidence. He was convicted, and the case went to the
Supreme Court of the United States. The Court found that the Border Patrol agent
acted lawfully when he stopped the van because he had reasonable suspicion that
criminal activity was afoot. In its decision, the Supreme Court explained that offi­-
cers may “draw on their own experience and specialized training to make
inferences and deductions” and apply them to the totality of the circumstances to
determine whether reasonable suspicion exists.

Anonymous tips can create problems for law enforcement. On one hand, law
enforcement agents obtain information about possible criminal activity from an
anonymous source and they want to investigate the tip. On the other hand,
anonymous tips are sometimes unreliable and investigation may intrude on an -­
individual’s privacy. Earlier in this chapter, discussion of the case of Illinois v.
Gates146 ­demonstrated that an anonymous tip can be the basis of a finding of
probable cause. But anonymous tips can also be the basis for law enforcement
action based on a reasonable suspicion. In light of the balancing under Terry
principles, the Fourth Amendment authorizes law enforcement to stop and frisk
when an anonymous tip is reliable enough to raise a reasonable suspicion that
criminal activity is afoot.
For example, in the case of Alabama v. White,147 an officer in the Montgomery,
Alabama, Police Department received a call from an anonymous person stating
that the defendant, mentioned by name, would be leaving a particular address at a
particular time and would enter a particularly described automobile and drive to -­
Dobey’s Motel, carrying a brown attaché case with an ounce of cocaine in it. The
officer and his partner went to the location, saw the described car, and observed a
woman, with nothing in her hands, entered the car and drove along the most
direct route to Dobey’s Motel. The officers stopped the defendant just short of the
motel and told her they suspected her of carrying cocaine and asked permission to
search the car. In the trunk they found a locked brown attaché case. They asked
and received permission to open it and found marijuana. The officers arrested
White. During processing at the station, the officers found three milligrams of
cocaine in her purse.

Page 326

White was charged with possession of both drugs. She moved to suppress the
drugs at her trial, claiming the officers lacked reasonable suspicion to stop her.
The trial court denied her motion, but the appellate court reversed her conviction
and the state supreme court agreed. The state took the case to the United States
Supreme Court, which reversed the decision of the state courts and upheld the
reasonableness of the police officers’ conduct in stopping White. The Court found
that, when the officers stopped her, under the totality of the circumstances, they
had sufficiently corroborated the anonymous tip to furnish reasonable suspicion
that she was engaged in criminal activity. Though the Court thought this was a
close case, the Court upheld the officers’ actions, stating, “When significant
aspects of the caller’s predictions were verified, there was reason to believe not
only that the caller was honest but also that he was well informed, at least well
enough to justify the stop.”

On the other end of the spectrum, in connection with anonymous tipsters and
reasonable suspicion, is the case of Florida v. J.L.148 There, police received an
anonymous tip that a young Black male was carrying a gun. The tipster said the
young Black male would be standing at a particular bus stop and he would be
wearing a plaid shirt. When the officers arrived at the bus stop, they found J.L., a
young Black male wearing a plaid shirt. They did not see J.L. carrying the firearm
or making any threatening movements. The officers approached J.L. and frisked
him. They found a gun in his pocket. J.L. was charged and convicted of state
firearms offenses. He moved to suppress the gun, and the state courts suppressed
the gun as the fruit of an unlawful search, undertaken without reasonable
suspicion. The state took the case to the United States Supreme Court, which held
that the offi­cers did not have reasonable suspicion to stop and frisk J.L.
According to the Court, the officers did not have reasonable suspicion based on
the anonymous tip alone. An anonymous tip is reliable when it provides
predictive information so the police can test the tipster’s knowledge or credibility.
In this case, the tipster’s information only predicted J.L.’s location and attire.
Anyone seeing him standing on the street could have provided that information.
Hence, the information did not describe inside information of criminal activity
afoot.

Application Case

In Hiibel v. Sixth Judicial District Court of Nevada, Humbolt County,149 a deputy

sheriff responded to a call reporting an assault of a young woman in a truck by a
man on a particular road. The deputy went to the scene and approached a truck in
which a young woman was seated and the defendant was standing alongside the
truck. The officer asked the man to identify himself, but he would not. The officer
repeated this request 11 times, but Hiibel, refused. Even when the officer told
Hiibel that he could be arrested if he refused to identify himself, Hiibel refused.
The officer arrested Hiibel, and he was convicted of violating a specific Nevada
statute that requires an individual subjected to a Terry stop to identify himself.
The case made its way to the United States Supreme Court, which upheld the
conviction, stating, “The Court is now of the view that Terry principles permit a
state to require a suspect to disclose his name in the course of a Terry stop.”

Page 327

The Duration of the Detention

The duration of the detention can be too long to be justified on grounds of

reasonable suspicion. In one case, the Supreme Court found that the detention of
an air traveler’s luggage for 90 minutes was itself “sufficient to render the seizure
unreasonable.”150 In another case, the Court concluded that a 16-hour ­detention
of a suspected drug smuggler, who was believed to have swallowed n­ arcotics-
filled balloons, was “not unreasonably long.”151 In yet another case, the Court
found that a detention of a few minutes at the station house for fingerprinting was
unreasonable.152
In each of these cases, the time alone was arguably not determinative. In the
luggage detention case, the Court also found that the officers did not pursue the
investigation diligently. The length of the detention was occasioned by the need
to transport the luggage from one airport to another to subject it to a dog sniff
test. The Court found that the officers had more than ample time to take the dog
to the airport, since they were awaiting the suspect’s arrival. In the drug
smuggler’s case, the Court stated that the defendant brought on the length of the
detention herself, through her “heroic” efforts to avoid defecating for that
extended period of time. And, in the fingerprinting case, the Court found that the
forcible transportation of the suspect from his home for the brief fingerprinting
detention was itself a de facto arrest.

Application CaseS

In Michigan v. Summers,153 the Supreme Court of the United States held that,
when executing a search warrant, an occupant of the home may be detained for
the duration of the search. The Court stated that, although the restraint on the
liberty of the detained occupant was significant, it was less intrusive than the
search itself.

However, in Bailey v. United States,154 the Court held that a detention of the
defendant at a place beyond the immediate vicinity of his apartment while it was
being searched was not permissible under Summers as a detention incident to the
execution of a search warrant.

Forcible Removal of the Suspect to the Station House

As in the fingerprinting detention case previously discussed, the Court has found
that the forcible removal of a suspect from his or her home or another place
where the suspect is entitled to be constitutes a de facto arrest. Remember that
insuch cases, there is no probable cause, but merely reasonable suspicion, for the
detention. Under such circumstances, the exercise of dominion and control over a
suspect in forcibly removing that suspect to the police station is far greater an
intrusion than an on-the-scene detention for investigation, commonly referred to
as an investigative detention.

Page 328

ON THE JOB
In Hayes v. Florida,155 the Supreme Court held that the forcible taking of a
suspect to a police station for fingerprinting will be considered an arrest,
requiring probable cause. Notwithstanding, the Supreme Court in that case
indicated that officers may conduct fingerprinting in the field, if several
conditions are met. These conditions include a reasonable suspicion that the
suspect has committed a crime, a reasonable basis to believe that fingerprinting
will establish or negate the suspect’s connection with that crime, and that the
procedure be carried out as quickly as possible.

Reasonable Diligence in Investigation

The final factor that will determine the reasonableness of a less-than-probable-

cause detention is the diligence with which the investigating officer acts to
confirm or dispel the suspicion that caused the stop in the first place. The officer
need not use the least intrusive means of investigating. If, in hindsight, a less
intrusive means could be said to have been available, the question will be whether
the officer acted reasonably in failing to recognize and pursue those means. In the
final analysis, the test will be whether the officer “pursued his investigation in a
diligent and reasonable manner.”156

A brief discussion of an important Supreme Court decision in this area will help
illustrate this point. In United States v. Sharpe,157 a DEA agent patrolling a road
in North Carolina spotted a pickup truck and car driving in tandem. The agent
thought the truck was heavily loaded and looked somewhat suspicious, so he
followed the two vehicles and, after about 20 miles, called for help from the
highway patrol to make an investigatory stop. When the agent and the highway
patrol officer tried to stop the vehicles, the truck pulled out, sped away, and was
chased and stopped down the highway by the officer. The DEA agent stopped the
car, radioed for more help from the local police, and did not reach the detained
pickup truck for about ten minutes. When the agent got to the truck, he smelled
marijuana through the rear window of the pickup. He also learned that there was,
in fact, a connection between the driver of the pickup and the driver of the car, the
defendant. By the time the DEA agent returned to the car and arrested the
defendant, some 30 to 40 minutes had elapsed since he first stopped the car. The
Supreme Court found the detention reasonable, based only on reasonable
suspicion. The Court noted that the agent’s investigation was diligent and
reasonable, even if he might have acted more speedily, for example, by having the
patrolman investigate the pickup truck.

Page 329
Extension of Frisks to Vehicles and Homes
The scope of a search based on reasonable suspicion is also limited because, if the
action becomes a full-scale search, probable cause will be required. The patting
down of a person an officer has reasonable suspicion to believe is armed is
limited to the person’s outer clothing in an attempt to discover weapons. Under
this rule, it would be impermissible for the officer to thrust a hand into a person’s
pocket. If an officer sees or feels something during a frisk that may reasonably be
a gun or other weapon, then the officer may search further than the outer clothing.
A frisk may not be required when the suspect, who is believed to be armed and
dangerous, makes sudden movements as if reaching for a weapon. In such
circumstances, the officer is justified in reaching into the place where the officer
believes the weapon to be without first frisking the suspect. If the patdown or
frisk of the suspect dispels the officer’s suspicion that the suspect is carrying a
weapon, then the search must cease. If, on the other hand, the officer feels an
object during the frisk that the officer has reason to believe is a weapon, then the
officer may seize the object and continue further with the frisk. Any soft object,
however bulky, will not likely justify further investigation.

In the case of Minnesota v. Dickerson,158 an officer removed an object from the

pocket of a person during a patdown search that turned out to be a small plastic
bag containing crack cocaine. The Supreme Court found the search and seizure
unlawful but said that an officer may seize an object if the officer can detect by
feel during a patdown search that the object is contraband. In Dickerson,
however, the officer never thought that the lump he felt in the pocket was a
weapon but also did not immediately recognize it as cocaine. He determined the
lump to be cocaine only after he “squeezed, slid, and otherwise manipulated the
pocket’s contents.” The Court held that the officer’s actions did not qualify under
the plain feel doctrine, which was discussed earlier in this chapter. By so stating,
the Court created the doctrine.

A police officer may also search the passenger compartment of an automobile on

reasonable suspicion. Such a search is allowed for the purpose of protecting the
police officer from weapons in the automobile that might be used against the
officer. The search, or “frisk,” of an automobile’s passenger compartment is
limited to those areas and any containers in which a weapon may be placed or
hidden. The officer must possess reasonable suspicion that the person is
dangerous and may gain immediate control of a weapon. The frisk of a car is
limited to those areas where a weapon might be, unlike a SILA search of an
automobile that allows the officer to search anywhere in the passenger
compartment, regardless of whether the area searched may contain a weapon or
destructible evidence.

Application Case

In Ybarra v. Illinois,159 the officers entered a small tavern with a warrant

authorizing the search of the tavern and a bartender for heroin and other items.
There were a number of patrons in the bar when the officers entered. The officers
patted down all of the patrons, including the defendant. As a result of the patdown
of the defendant, an officer discovered drugs in his possession, hidden in a
cigarette package. However, the officers had no suspicion that the defendant was
armed and dangerous, nor did the warrant extend to him or any other patron of the
tavern. The Court held that the patdown search of the accused, without any
suspicion of his being armed and dangerous, was illegal.

Page 330

Fourth Amendment rights to privacy are reduced in a public school

setting, allowing for search and seizure based upon reasonable
 suspicion of illegal activity.

Paul S. Howell/Getty Images

A frisk of a house may also be permitted on less than probable cause. When
officers arrest a person in a home or other premises and there is a reasonable
suspicion that individuals who pose a danger to officers or others are concealed in
the house, the officers may make a protective sweep of the building. This power
to conduct a protective sweep is different from the automatic extension of the
SILA area of immediate control. Keep in mind that the Buie160 case, discussed in
the SILA section of this chapter, extended the allowable search area into closets
and other spaces immediately adjoining the place of arrest. That extension was
automatic, not even requiring reasonable suspicion. The Buie case also authorized
the protective sweep of other areas of the premises to search for dangerous
persons, but only if there is reasonable suspicion that such persons might be
present.

Another area where the Supreme Court has allowed a search on reasonable
suspicion involves schoolchildren in public schools. In New Jersey v. T.L.O.,161 a
school official had searched a high school student’s purse, looking for cigarettes
as evidence to corroborate a teacher’s report that the student had been smoking in
a lavatory, which was against school rules. He found the cigarettes and noticed
some rolling papers, which led to further searches of the purse, during which the
official found marijuana and evidence that the student was selling the drugs. The
Court upheld this warrantless search, declaring that searches of schoolchildren by
school authorities may be conducted without a warrant, based on a reasonable
suspicion of a violation of school rules or laws. Balancing the citizen’s Fourth
Amendment interests against the state’s interests in this manner is consistent with
the reduced expectation of privacy in public schools. The state’s interest is in
maintaining order and discipline in schools. The citizen’s interest is in the right to
be secure in his or her “person, houses, papers, and effects.”
Suspicionless Stops and Searches:
The Special Needs Exception to the
Probable Cause and Warrant
Requirements
There are a number of arenas where societal needs create a government
interest that argues for suspicionless stops and searches of individuals. Here
we are not concerned with situations such as entry into airport boarding
areas, where all passengers are subject to routine stops and searches. In
recent years, the Supreme Court has approved stops and searches of persons
in certain situations where there is absolutely no suspicion of any particular
person acting unlawfully. In these situations, the Court has found a
governmental interest separate from usual law enforcement needs; the
government has demonstrated special needs. A few categories that carry
criminal penalties that the Court has approved are sobriety checkpoints,162
fixed inland border checkpoints (to search for illegal aliens),163 and
probation officers’ searches of probationers’ homes.164

Page 331

In the case of Maryland v. King,165 the Supreme Court extended the

suspicionless search doctrine to the state taking a DNA sample from a
suspect arrested for “a serious offense” without grounds for believing that
the results would be used in a criminal prosecution. In a 5-4 decision, the
Court found sufficient government interest in using such information to
further the needs of the criminal justice system, while the defendant’s
privacy interests did not outweigh the state’s. The defendant’s DNA sample
was used to compare with DNA samples from cold cases, leading to his
identification as the likely perpetrator of a rape committed six years before.
The evidence was admitted against King at trial, and he was convicted. The
decision in King also has implications for the search incident to arrest and ­-
inventory exceptions to the warrant and probable cause requirements of the
Fourth Amendment.

Application Case

In United States v. Knights,166 Knights signed a probation order in which he

agreed to submit himself, his property, and his home to searches at any time
with or without a warrant, and even in the absence of probable cause. The
police conducted a warrantless search of Knights’ apartment based on
reasonable suspicion. The court upheld the search, reasoning that the
conditions of probation diminished Knights’ reasonable expectation of
privacy.

In addition, the Court has approved drug testing in a few areas where no
criminal penalties were involved: for example, certain railway employees
after railway accidents,167 drug testing of Customs Service employees
engaged in certain activities,168 and drug testing of all high school and
junior high school athletes in a school district.169

Application Case

In Board of Education v. Earls,170 the court upheld a school policy that

required all middle and high school students who wished to participate in
any “­competitive” extracurricular activities—including choir, band, sports,
and the academic team—to submit to a drug test. The court concluded that
the drug testing policy was reasonable, even though the schools in question
did not have a major drug problem, as the invasion of students’ privacy
caused by the drug testing was not significant.

Page 332

These situations are exceptions, however, to the general rule that search or -­
seizure must be accompanied by either individualized probable cause or
reasonable suspicion. In three other cases, the Supreme Court demonstrated
that there are limits to government claims for special needs that suspend the
requirement of individualized suspicion. First, in Chandler v. Miller,171 the
Court held that Georgia’s requirement that certain candidates for state office
pass a mandatory drug test did not fit within the category of constitutionally
permissible suspicionless searches. A significant aspect of the Court’s
reasoning was that the state did not show any specific suspicion that there
was drug use by state officials. In short, the state did not demonstrate any
special needs.

Similarly, in Ferguson v. City of Charleston,172 the Court declared invalid a

city’s scheme that identified and tested, without consent, any maternity
patient in the public hospital suspected of drug use, where the use
jeopardized the health of the unborn child. Under the plan, if the results of a
urine test were positive, the police would be notified and the mother would
be prosecuted. The Court found that the claimed special need in this plan
was one not divorced from the state’s general interest in law enforcement.
Hence, the Court found the plan to be unreasonable and unconstitutional.

Finally, in City of Indianapolis v. Edmond,173 the Supreme Court reviewed

a city’s drug interdiction checkpoint plan. Under the plan, the police set up -­
roadblock checkpoints on six occasions over a four-month period, mostly -­
during the day. Under the written plan, a predetermined number of vehicles
were stopped for two to three minutes each. At least one officer approached
each car and told each driver the purpose of the stop—to check for drugs—
and asked each driver to produce a license and registration. While the
officer looked for signs of impairment and conducted an open-view
examination of the vehicle from outside, a narcotics-detection dog walked
around the outside of the vehicle, s­ niffing for contraband. The program had
a 9 percent yield of arrests, more than half of which were for drug-related
crimes. The Court struck down the city’s plan as unconstitutional,
distinguishing the border-stop and sobriety checkpoint cases. According to
the Court, those cases involved checkpoints “designed primarily to serve
purposes closely related to the problems of policing the border or the
necessity of ensuring roadway safety,” whereas, in this case, the primary
purpose of the city’s roadblock was to “detect evidence of ordinary criminal
wrongdoing.” In short, the city failed to demonstrate special needs
justifying suspicionless stops of motorists.
Objecting to the Introduction of
Evidence Claimed to Be Illegally
Seized
In order to claim that evidence has been illegally seized, an accused in a criminal
case must have the right to make such a claim and must file a written request in
court at the earliest opportunity. The right to make the claim has traditionally
been called standing, and the written request is called a motion to suppress.

Standing
Traditionally, the right to contest an illegal search and seizure—and, for that ­-
matter, any claimed constitutional or law violation—has been known as standing.
Analytically, however, standing is nothing more than the possession of a claim of
a personal, reasonable expectation of privacy in the thing seized or the place
searched. Earlier in this chapter, Katz v. United States and its doctrine of the
expectation of privacy were discussed. The requirement of standing is nothing
more than the law’s demand that one who claims a Fourth Amendment violation
must demonstrate a personal expectation of the privacy that was violated. If the
defendant has no personal and reasonable expectation of privacy in the place
searched or the things seized, there is no basis on which that person can make a
Fourth Amendment complaint, and the motion to suppress the evidence will be
dismissed.

Page 333

Two United States Supreme Court decisions will be helpful in illustrating who
may have standing. In Rakas v. Illinois,174 officers stopped an automobile
matching the description of a car used in a robbery that took place shortly before
the stop. The officers ordered the occupants out of the car and then searched the
passenger compartment. The police found rifle shells in a glove box and a sawed-
off shotgun under a passenger seat. The defendant, a passenger in the car,
attempted to exclude the shells and the rifle from evidence. The United States
Supreme Court held that the defendant could not contest the search and seizure
because he lacked a reasonable expectation of privacy in the car. According to the
Court, Fourth Amendment rights are personal in nature, and therefore only the
person whose rights are violated can challenge the search. Under the Court’s
reasoning, the owner of the car could contest the search because he possessed a
reasonable expectation of privacy. The defendant, as a passenger in the car,
lacked any personal expectation of privacy in the car.

Two years after Rakas, the Supreme Court decided the case of Rawlings v. ­-
Kentucky.175 In Rawlings, the defendant placed a variety of controlled substances
into the purse of an acquaintance in an attempt to avoid discovery by the police.
When the police ordered the acquaintance to empty her purse, revealing the
narcotics, the defendant admitted that the narcotics were his. The Court held that
the defendant lacked a reasonable expectation of privacy in the purse. In reaching
this conclusion, the Court reaffirmed that in Rakas, it had abandoned a separate
inquiry into “standing” in favor of an inquiry that focused on the substance of a
defendant’s legitimate expectation of privacy in the area searched.

A person may gain an expectation of privacy in another person’s property,

because the concept of expectation of privacy does not rest on some kind of
property interest. For instance, a person may gain a reasonable expectation of
privacy in another’s car. If, on a regular basis, the owner of a car allows the
defendant to use and exercise control over the car, then the defendant may gain a
reasonable expectation of privacy in the car. The same holds true if the property
in question is a dwelling. In fact, if the property searched is a dwelling as opposed
to a vehicle, then it is much easier to establish an expectation of privacy, since, as
the Supreme Court has pointed out, a person has a lesser expectation of privacy in
a vehicle. Thus, in M­ innesota v. Olson,176 the Court held that an overnight guest
in another’s home gains a reasonable expectation of privacy in that home for
Fourth Amendment purposes.

Page 334

Application Case

In Minnesota v. Carter,177 a police officer peeked through a gap in the blinds on a

window of an apartment and observed Carter bagging cocaine at the kitchen table
with two other people. Carter and his companion from Chicago, Johns, did not
live in the apartment; they were in the apartment for the sole purpose of bagging
cocaine. Based upon the view into the apartment, the police obtained evidence of
cocaine-related crimes and arrested and charged Carter, Johns, and the lessee of
the apartment with those crimes. At trial, Carter and Johns moved to suppress all
the evidence, claiming it was fruit of an unlawful search. The trial court denied
the motion, and the case ultimately went to the United States Supreme Court. The
Court affirmed the trial court’s ruling on the motion to suppress, finding Carter
and Johns did not have an expectation of privacy in the apartment and hence
could not claim the police officer’s peek into the window was an illegal search.
The commercial nature of Carter and Johns’ visit, the relatively short time Carter
and Johns were at the apartment, and the lack of connection between Carter and
Johns and the resident led the Court to conclude that Carter and Johns did not
have a l­egitimate expectation of privacy while in the apartment bagging the
cocaine.

Motion to Suppress Evidence

If a defendant believes that evidence has been illegally obtained, an objection to
its use by the prosecution must be made in court at the earliest opportunity. The
written objection, called a motion to suppress, usually must be filed within a set
time after the defendant’s arraignment.

The motion to suppress evidence will set forth the reasons the defendant thinks
that the evidence was illegally obtained. The objection to a search warrant might
attack the search warrant itself, the scope of the search, or the seizure of some
item not listed in the warrant. For example, in the case of a search incident to an
arrest, the objection may be that there was insufficient probable cause to make the
arrest; if the arrest was illegal, then the search and seizure of the evidence was
unlawful. Or the defendant may claim that the SILA extended beyond the area
under his or her immediate control, which would make the search, and therefore
the seizure of evidence, unlawful. Figure 9–3 shows the motion to suppress from
the O.J. Simpson trial.

Page 335
FIGURE 9–3 Sample motion to suppress.
A hearing is usually held on the motion to suppress evidence prior to the trial. At
that hearing, the defendant will attempt to develop through testimony the reasons
the evidence should be excluded. The prosecution will offer a rebuttal and present
the reasons to prove that the evidence was legally obtained. If the magistrate or
judge denies the motion to suppress before or at the preliminary hearing, the
motion can be renewed at trial. If the magistrate or judge agrees with the
defendant, the evidence will be excluded, but if the judge decides that the
evidence was legally obtained, it will be admitted against the accused at the trial.
The admission of evidence over the defendant’s objection is grounds for appeal.
If the appellate court thinks the evidence was illegally obtained and should have
been excluded, the conviction, in most instances, will be reversed.
Page 336

Review and Application

Summary
1. The primary purpose of the exclusionary rule is to prevent the
introduction of illegally obtained evidence in trial.

2. The two-pronged test for determining whether a search occurred under

the Fourth Amendment examines whether (1) the person alleging that
a search occurred has exhibited an actual, subjective expectation of
privacy in the place searched; and (2) the person’s expectation is one
that society is prepared to recognize as reasonable or legitimate. If
both conditions are present, then there is a search.

3. The proper procedure and requirements for obtaining a search warrant

are for the officer to fill out a warrant application (an affidavit)
containing an adequate statement of probable cause and stating
specifically the items to be found and seized.

4. Probable cause means a fair probability that a crime has been

committed, that a person possesses seizable property, or that seizable
property or a person subject to arrest is located in a particular place.
Probable cause may be established by facts and circumstances that
would lead a person in the officer’s position reasonably to believe the
facts to be true. The facts may be perceived by the officer personally or
reported by a known or unknown informant. If the facts are reported
by an informant, the officer must have information as to the
informant’s basis of knowledge and reliability, or the information must
be communicated under circumstances that lend credibility to the
informant’s information. Finally, the officer may investigate an
informant’s tip that is insufficient to provide ­probable cause, thereby
gaining sufficient information to equal probable cause when combined
with the tip.
 5. A search incident to a lawful arrest can be made only when an officer
has executed a lawful arrest. Such a search is limited to the person of
the arrestee; the area within the arrestee’s immediate control; any area
immediately adjoining the place of arrest from which an attack could
be i­mmediately launched, if the arrest takes place in a home or other -­
structure; and the interior of the passenger compartment of a car and
any containers, open or closed, therein if the arrest takes place while
the ­arrestee is in a car or recently emerged from a car.

6. The three ways that a vehicle may be searched without a warrant are
(1) incident to a lawful arrest of a passenger; (2) according to the
inventory exception; and (3) under the vehicle exception, when there is
probable cause to believe that the vehicle contains seizable objects.

7. The two requirements for a valid consent are that the consent must be
voluntarily given and that the person giving the consent has authority,
or at least apparent authority, over the property.

8. Validity of a third-party’s consent depends on whether the third party

and the defendant have common authority, or apparent authority, for
most purposes over the premises or property.

Page 337

9. Four circumstances have been recognized as exigent: (1) hot pursuit of

a fleeing felon; (2) imminent destruction of evidence; (3) the need to
prevent a suspect’s escape; and (4) the risk of harm to the police or to
others.

10. The requirements of the plain view doctrine are that (1) the officer
observes the object from a lawful vantage point; (2) the officer has a
right of physical access to the object from the lawful vantage point;
and (3) the nature of the object is immediately apparent as an article
subject to seizure (i.e., that it is contraband or a fruit, instrumentality,
or evidence of a crime).

11. In order for a law enforcement officer to stop and frisk a suspect, the
officer must have a reasonable suspicion that a particular person is
 engaged in a crime and is armed and dangerous.

12. The standing requirement is that, before a defendant may claim a

constitutional violation, he or she must demonstrate a personal,
reasonable expectation of privacy in the place searched or the things
seized.

Key Terms
exclusionary rule 268

fruit of the poisonous tree doctrine 269

independent source doctrine 269

attenuation doctrine 270

inevitable discovery doctrine 271

silver platter doctrine 271

deterrence rationale 272

good faith exception 273

impeachment exception 275

false friend doctrine 278

open fields doctrine 278

curtilage 278

seizure of property 284

seizure of a person 284

search warrant 286

fruit of a crime 287

instrumentality of a crime 287

evidence of a crime 287

contraband 287

probable cause 287

neutral magistrate 287

probable cause to search 289

probable cause to arrest 290

totality of the circumstances for probable cause 292

fair probability 293

knock and announce, or knock and notice 298

staleness doctrine 300

anticipatory warrant 301

return of the search warrant 301

search incident to a lawful arrest (SILA) 302

protective sweep 305

vehicle exception 309

inventory search 311

consent search 312

consent 312
 totality of the circumstances for consent 313

common authority 315

apparent authority doctrine 317

exigent circumstances search and seizure 317

plain view doctrine 320

reasonable suspicion 323

stop 323

frisk 324

plain feel doctrine 329

standing 332

motion to suppress 332

Questions for Review

1. What is the primary purpose of the exclusionary rule?

2. What are the conditions examined in the two-pronged test for

determining, under the Fourth Amendment, whether there is a search?

Page 338

3. How does an officer obtain a valid search warrant?

4. How can an officer establish probable cause?

5. What are the limitations on a search incident to lawful custodial arrest?

6. What are the three ways in which a vehicle may be searched without a
warrant?
 7. What are the two requirements for a valid consent?

8. What is the additional requirement for a valid consent if a third party is

giving consent?

9. What circumstances have been recognized as exigent, allowing an

officer to search with a warrant?

10. What elements must be satisfied before an officer may seize an object
under the plain view doctrine?

11. What justification does an officer need to conduct a stop and frisk?

12. What is the standing requirement for a defendant’s assertion of a

constitutional violation by law enforcement officers?

Workplace Applications
1. In addition to the examples given in the chapter, list five specific
examples of fruits, instrumentalities, contraband, and evidence that
you could specify in a search warrant. Are there any examples that
could fit into two or more categories?

2. You have received confidential, reliable information from an informant

you have successfully used six times in the past. The past information
has led to fifteen arrests and the seizure of two guns and several
pounds of cocaine. The current information is that a large shipment of
marijuana will be arriving at 789 Southwestern Avenue at 4 o’clock
this afternoon in a white Cadillac. You have staked out the location,
have run a check of the license plates of all vehicles seen at the
location, and have ascertained the names of the owner and occupants.
Write an affidavit requesting search and arrest warrants. Be sure to
include all contraband, evidence, fruits, and instrumentalities that you
expect to find and locations you wish to search.

3. At roll call, the lieutenant hands you and five other officers a search
warrant and tells you to execute it. The place to be searched is in a
 trailer park, and the items to be seized are stolen cars and parts. It
seems odd to you that the four cars listed on the warrant could be in a
trailer park lot, but none of the other officers think anything is wrong
with the warrant. After searching the trailer and lot, you do not find the
items listed in the warrant, but you discover contraband in plain view.
However, you discover that the name of the street was misspelled on
the warrant and you have searched the wrong location. Did you
conduct a legal search? Why or why not?

4. You receive an anonymous tip that there is marijuana growing in the

backyard of a certain address. You go to the location to investigate and
discover a six-foot wooden fence surrounding the curtilage of the
house. Is it a search if you look through a knothole in the fence? If you
get a ladder and look over the fence? If you get a 6’5”officer to peer
over the fence? If you open the gate door a crack and just look into the
yard?

Page 339

5. Officers suspect that an 18-year-old male is responsible for thousands

of dollars of personal property damage through the creation of gang-
related graffiti all over town. Officers go to his house and, after talking
with his mother, determine that the suspect is not home, that he does
not have a lock on his bedroom door, and that his mother goes into his
room twice a week, once to collect his laundry and again to put it
away. The mother consents to a search of her son’s room for spray
paint cans. Is the consent valid?

Ethical Dilemma
1. A search warrant that your lieutenant handed you to execute at a crack
house is invalid because of a misstatement about an informant, but you
are the only one who recognizes the error. You know that a reasonable
officer, such as your lieutenant and your partner, would believe the
warrant to be valid, and therefore the warrant will have no problem
being admitted in court. The department anticipates a record-breaking
 seizure of cocaine and numerous arrests. Should you execute the
warrant?

Endnotes
1. Miranda v. Arizona, 384 U.S. 436 (1966).

2. 232 U.S. 383 (1914).

3. 367 U.S. 643 (1961).

4. People v. Defore, 150 N.E. 585, 587 (1926) (Justice Cardozo,

criticizing the exclusionary rule of the Weeks case).

5. 251 U.S. 385 (1920).

6. 371 U.S. 471 (1963).

7. 579 U.S. 232 (2016).

8. 547 U.S. 586 (2006).

9. 467 U.S. 431 (1984).

10. Id. at 444.

11. 364 U.S. 206 (1960).

12. Mapp v. Ohio, 367 U.S. 643, 655 (1961).

13. 468 U.S. 897 (1984).

14. Id. at 926.

15. Joshua Dressler, ­Understanding C

­ riminal ­Procedure § 20.06 [B][1], at
p. 388 n.149 (8th ed. 2021).
16. See Illinois v. Krull, 480 U.S. 340 (1987), where the United States
Supreme Court held the good faith exception applicable to an unlawful
search and seizure carried out in objectively reasonable reliance upon a
state statute later declared unconstitutional.

17. Joshua Dressler, Understanding Criminal Procedure § 21.09 [A], at p.

409 (3d ed. 2000).

18. See Arizona v. Evans, 514 U.S. 1 (1995).

19. Herring v. United States, 555 U.S. 135 (2009).

20. 564 U.S. 229 (2011).

21. 555 U.S. 135 at 143–44.

22. 480 U.S. 79 (1987).

23. 540 U.S. 551 (2004).

24. 389 U.S. 347 (1967).

25. Id. at 351–52 (emphasis added).

26. 508 U.S. 366 (1993).

27. 385 U.S. 293 (1967).

28. 401 U.S. 745 (1971).

29. ___ U.S. ___, 138 S. Cy. 2206 (2018).

30. 265 U.S. 57 (1924).

31. 466 U.S. 170 (1984).

32. ___ U.S, ___, 138 S. Ct. 1663 (2018).

33. 442 U.S. 735 (1979).

34. 425 U.S. 435 (1976).

35. 460 U.S. 276 (1983).

36. 468 U.S. 705 (1984).

37. 533 U.S. 27 (2001).

38. 565 U.S. 400 (2012).

39. The description of Jones v. United States is derived from Thomkovicz

& White, Criminal Procedure: Constitutional Constraints Upon
Investigation and Proof 33–35 (9th ed. 2021).

40. 569 U.S. 1 (2013).

41. 575 U.S. 306 (2015).

42. State v. Grady, 817 S.E. 2d 18 (Ct. App. N.C. 2018).

43. 476 U.S. 207 (1986).

44. 488 U.S. 445 (1989).

Page 340

45. 466 U.S. 109 (1984).

46. 462 U.S. 696 (1983).

47. 543 U.S. 405 (2005).

48. Id. at 409–10.

49. 568 U.S. 237 (2013).

50. 575 U.S. 348 (2015).

51. Id. at 350.

52. 569 U.S. 1 (2013).

53. 486 U.S. 35 (1988).

54. United States v. Jacobsen, 466 U.S. 109, 113 (1984).

55. United States v. Mendenhall, 446 U.S. 544, 553–54 (1980).

56. 501 U.S. 429 (1991).

57. Id. at 436.

58. 499 U.S. 621, 626 (1991).

59. 536 U.S. 194 (2002).

60. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).

61. James J. Tomkovicz & Welsh S. White, Criminal Procedure: ­-

Constitutional Constraints upon Investigation and Proof 80 (9th ed.
2021) citing and quoting United States v. Garza-Hernandez, 623 F.2d
496 (7th Cir. 1980) (quoting ­Brinegar v. United States, 338 U.S. 160,
174–76 (1949) (emphasis added by Tomkovicz and White).

62. Illinois v. Gates, 462 U.S. 213, 238 (1983).

63. Id. at 235.

64. 540 U.S. 366 (2003).

65. 358 U.S. 307 (1959).

66. 423 U.S. 411 (1976).

67. 532 U.S. 318 (2001).

68. 462 U.S. 213 (1983).

69. 378 U.S. 108 (1964).

70. 393 U.S. 410 (1969).

71. Gates, 462 U.S. at 238.

72. Gates, 462 U.S. at 245.

73. 574 U.S. 54 (2014).

74. 568 U.S. 237 (2013).

75. 480 U.S. 79 (1987).

76. 496 U.S. 128 (1990).

77. Gooding v. United States, 416 U.S. 430 (1974).

78. John M. Burkoff, Search Warrant Law Deskbook (St. Paul, MN:
Thomson Reuters). Available online via Westlaw:
[Link]
awSecondarySources/CriminalLawTextsTreatises/SearchWarrantLaw
Deskbook?transitionType=Default&contextData=([Link])&
VR=3.0&RS=cblt1.0.

79. Id.

80. See Josiah Bates, Breonna Taylor’s Killing Sparked Restrictions on

No-Knock Warrants. But Experts Say Those Rules Don’t Actually
Change Much, Time, March 11, 2022,
[Link] (lasted
visited 3/25/2022).

81. 526 U.S. 603 (1999).

82. Id. at 614.

83. 514 U.S. 927 (1995).

84. Id. at 930.

 85. 520 U.S. 385 (1997).

86. 547 U.S. 586 (2006).

87. 523 U.S. 65 (1998).

88. 547 U.S. 90 (2006).

89. 438 U.S. 154 (1978).

90. 395 U.S. 752 (1969).

91. 414 U.S. 218 (1973).

92. 525 U.S. 113 (1998).

93. Chimel v. California, 395 U.S. 752, 763 (1969).

94. Id. at 763.

95. Maryland v. Buie, 494 U.S. 325, 334 (1990).

96. 415 U.S. 800 (1980).

97. Id. at 803.

98. 494 U.S. 325 (1990).

99. Id. at 327.

100. Id. at 334.

101. See New York v. Belton, 453 U.S. 454 (1981).

102. Arizona v. Gant, 556 U.S. 332 (2009).

103. 453 U.S. 454 (1981).

104. 541 U.S. 615 (2004).

105. Arizona v. Gant, 556 U.S. 332 (2009).

106. Riley v. California, 574 U.S. 373 (2014).

107. 384 U.S. 757 (1966).

108. 569 U.S. 141 (2013).

109. Id. at 144.

110. 579 U.S. 438 (2016).

111. Carroll v. United States, 267 U.S. 132, 153–54 (1925).

112. Cardwell v. Lewis, 417 U.S. 583 (1974).

113. Cady v. Dombroski, 413 U.S. 433, 441 (1973).

114. ___ U.S, ___, 138 S. Ct. 1663 (2018).

115. 526 U.S. 599 (1999).

116. Texas v. White, 423 U.S. 67, 68 (1975).

117. Chambers v. Maroney, 399 U.S. 42 (1973).

118. 471 U.S. 386 (1985).

119. 526 U.S. 295, 302 (1999).

120. 528 U.S. 11 (1999).

121. 412 U.S. 218 (1973).

122. 519 U.S. 33 (1996).

123. 536 U.S. 194 (2002).

124. 501 U.S. 429 (1991).

125. United States v. Matlock, 415 U.S. 164, 172 n.7 (1974).

126. 547 U.S. 103 (2006).

127. United States v. Matlock, 415 U.S. 164, 172 n.7 (1974).

128. 497 U.S. 177 (1990).

129. 495 U.S. 91, 100 (1990).

130. Warden v. Hayden, 387 U.S. 294 (1967).

131. 569 U.S. 141 (2013).

Page 341

132. 399 U.S. 30 (1970).

133. 531 U.S. 326 (2001).

134. See Arizona v. Hicks, 480 U.S. 321 (1987).

135. 387 U.S. 294 (1967).

136. Id. at 298.

137. Id. at 299.

138. 466 U.S. 740 (1984).

139. 529 U.S. 334 (2000).

140. 480 U.S. 321 (1987).

141. 392 U.S. 1 (1968).

142. Camara v. Municipal Court, 387 U.S. 523, 536–37 (1967).

143. 392 U.S. 1, at 30.

144. 528 U.S. 119 (2000).

145. 534 U.S. 266 (2002).

146. 462 U.S. 213 (1983).

147. 496 U.S. 325 (1990).

148. 529 U.S. 266 (2000).

149. 542 U.S. 177 (2004).

150. United States v. Place, 462 U.S. 696, 710 (1983).

151. United States v. Montoya de H

­ ernandez, 473 U.S. 551, 532 (1985).

152. Hayes v. Florida, 470 U.S. 811 (1985).

153. 452 U.S. 692 (1981).

154. 568 U.S, 186 (2013).

155. 470 U.S. 811 (1985).

156. United States v. Sharpe, 470 U.S. 675, 687 (1985).

157. Id.

158. 508 U.S. 366 (1993).

159. 444 U.S. 85 (1979).

160. Maryland v. Buie, 494 U.S. 325 (1990).

161. 469 U.S. 325 (1985).

162. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

163. United States v. Martinez-Fuerte, 429 U.S. 543 (1976).

164. Griffen v. Wisconsin, 483 U.S. 868 (1987).

165. 534 U.S. 112 (2001).

166. United States v. Knights, 534 U.S. 112 (2001).

167. Skinner v. Railway Labor Executives’ Assn, 489 U.S. 602 (1989).

168. National Treasury Employees Union v. Von Raab, 489 U.S. 656
(1989).

169. Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).

170. 536 U.S. 822 (2002).

171. 520 U.S. 305 (1997).

172. 532 U.S. 67 (2001).

173. 531 U.S. 32 (2001).

174. 439 U.S. 128 (1978).

175. 448 U.S. 98 (1980).

176. 495 U.S. 91 (1990).

177. 525 U.S. 83 (1998).

Design Element: ©Ingram Publishing

Page 342

10

Exclusionary Rule—Identification
Procedures

Rich Legg/Getty Images

Page 343

Chapter Outline

Identification Procedures and the Exclusionary Rule

 Identification Procedures and the Right to Counsel

The Critical Stage Test for the Right to Counsel

When Counsel Need Not Be Present

Identification Procedures and Due Process

Effect of Illegal Pretrial Identification on In-Court Identification

Only Unnecessarily Suggestive Pretrial Identifications Are Illegal

Types of Suggestive Identification Procedures

Size of the Lineup or Array

Collaboration Between Witnesses

Police Instructions or Statements to Witnesses

Composition of the Lineup or Photo Array

Different Appearance of the Accused

Other Suggestive Procedures Pertaining Solely to Photo Arrays

Determining the Reliability of a Suggestive Identification: The Five Factors

of the Biggers Case

Witness’s Opportunity to View the Criminal at the Time of the Crime

Witness’s Degree of Attention

Accuracy of the Description

Level of Certainty Demonstrated by the Witness at the Confrontation

Length of Time Between the Crime and the Confrontation

Review and Application

Chapter Objectives
This chapter discusses the exclusionary rule as it relates to lineups and other
identification procedures. After reading this chapter, you will be able to:

Name three types of identification procedures.

Explain when an accused is entitled to counsel at an identification procedure.

Explain when an accused is not entitled to counsel at an identification

procedure.

Identify the constitutional grounds for an accused’s claim of

misidentification before trial and at trial.

Explain the test for allowing an in-court identification by a witness whose

pretrial identification was tainted.

State the test for excluding evidence of a pretrial identification on grounds of

suggestiveness.

List the five factors set forth in the Biggers case.

Summarize the law applicable to identifications when there is a claim that a

pretrial identification procedure was suggestive.

Name several situations that the law enforcement officer should avoid with
respect to the makeup of a lineup or photographic array.

State the purpose of the Biggers five factors analysis.

Page 344

Identification Procedures and the

Exclusionary Rule
The exclusionary rule makes relevant evidence inadmissible at trial if a
defendant’s Fourth Amendment rights (the rights against unreasonable
searches and seizures) have been violated. Both pretrial and in-court
identifications may be inadmissible against defendants, if a defendant’s
Fourth, Fifth, Sixth, or Fourteenth Amendment rights were violated during
the investigative identification procedure. If a search or seizure takes place
before an identification procedure, and the search or seizure is found by a
court to have violated the Fourth Amendment, the subsequent identification
of the accused could be excluded from evidence as fruit of the poisonous
tree. However, the identification may be excluded from evidence on
grounds other than those related to the search and seizure, for example,
grounds relating to right to counsel and due process. Therefore, the law
enforcement professional must be familiar with and meet certain standards
with respect to the procedures used to identify suspects.

“The vagaries of eyewitness identification are well-known; the annals of

criminal law are rife with instances of mistaken identification.”1 With these
words, the United States Supreme Court announced a rule requiring counsel
to be present at post-indictment lineup procedures conducted for the
purpose of identifying suspects as perpetrators. During 1967, in a trilogy of
cases (Wade, Stovall, and Gilbert),2 the Court explored the issues relating to
identification evidence. The essence of the Court’s conclusions was that
misidentification due to a variety of causes was a serious problem in
eyewitness testimony. Improper or suggestive pretrial procedures regarding
the identification of individuals can lead to misidentification.
Misidentification at trial then deprives an accused of a fair trial. Therefore,
in this trilogy of cases, and others that have followed, the Court established
basic guidelines to prevent or reduce the likelihood of such errors.
The presence of counsel at pretrial identifications is not always possible.
However, according to the Supreme Court, the Constitution mandates that
an attorney must be present at post-indictment lineups. If an attorney is not
present, then any mention of the lineup is prohibited at trial. Regardless of
whether an attorney is present, the procedure must not be unfairly
suggestive. If the procedure is unfairly suggestive, the subsequent in-court
identification by the witness may also be subject to the exclusionary rule,
unless it can be shown that the in-court identification resulted from an
independent source—i.e., was not affected by the suggestive procedure.

There are three basic types of identification procedures: lineups, show-ups,

and photographic arrays. A lineup is the presentation to a victim or witness
of a line of persons who all look similar to see if one can be identified as the
perpetrator of the crime. A show-up is the one-on-one presentation of a
suspect to a victim or witness for identification purposes. A photographic
array is a presentation to a witness of a number of photographs for
identification of the perpetrator.
Identification Procedures and the
Right to Counsel
The Sixth Amendment to the Constitution states, in part, “In all criminal
prosecutions, the accused shall … have the assistance of counsel for his
defense.” The United States Supreme Court has held that the right to
counsel at trial is a fundamental right. This right applies to the states
through the Fourteenth Amendment Due Process Clause whenever a
defendant’s trial may result in incarceration.3 Additionally, since events
may occur before trial that affect an accused’s trial rights, the right to
counsel may attach long before the trial itself. It is therefore necessary to
determine at what stage in the pretrial process, and under what
circumstances, counsel must be present when the police attempt to have a
witness or victim identify a suspect.

Page 345

The Critical Stage Test for the Right to Counsel

As early as 1932, the United States Supreme Court observed that “the
period from arraignment to trial was ‘perhaps the most critical period of the
proceedings …’ during which the accused ‘requires the guiding hand of
counsel … if the guarantee is not to prove an empty right.’”4 The Court has
also held that an accused, after indictment, is entitled to counsel during
questioning by an undercover informant.5 Miranda extended the right to
counsel to suspects being held for custodial interrogation.6 Therefore, it is
not surprising that, in 1967, the Court held that a post-indictment lineup
conducted for identification purposes is a critical stage of a criminal
prosecution at which counsel is required to be present.7

A critical stage begins at the initiation of an adversarial judicial proceeding,

whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment. Any pretrial event requiring the presence of
counsel can be a critical stage, analogous to a trial, where the accused may
be overpowered by his or her professional adversary. The test of a critical
stage is whether at “the trial itself … no substitute for counsel” can be
provided to a defendant in the event that “a pretrial confrontation is
conducted in the absence of counsel.”8 An accused is guaranteed that he or
she need not stand alone against the state at any stage of the prosecution,
formal or informal, in court or out of court, where counsel’s absence might
detract from the accused’s right to a fair trial.9

In United States v. Wade,10 several weeks after Wade’s indictment for

robbery, a Federal Bureau of Investigation (FBI) agent arranged to place
Wade in a lineup, without notice to Wade’s lawyer. Wade and the others in
the lineup were made to wear strips of tape on their faces, as the witness
said the robber had done. They also repeated aloud the words the robbers
had uttered. Two bank employees identified Wade as one of the robbers at
the pretrial lineup and again at trial.

Wade moved to strike the courtroom identifications because he was denied

his Sixth Amendment right to counsel at the pretrial lineup. The United
States Supreme Court agreed, stating that “a major factor contributing to the
high incidence of miscarriage of justice from mistaken identification has
been the degree of suggestion inherent in the manner in which the
prosecution presents the defendant to witnesses for pretrial identification.”11
The Court recognized the grave potential for prejudice improperly
influencing the witness at the pretrial lineup. Since it may be impossible to
reconstruct the pretrial lineup at trial, the presence of defense counsel at the
lineup can guard against prejudicial practices, provide a means of
documenting what occurred, and assure a meaningful confrontation at trial.
The Court therefore held that the post-indictment lineup is a critical stage of
the prosecution at which the accused is as much entitled to the aid of
counsel as at the trial itself.12 The Wade decision extended the exclusionary
rule to post-indictment pretrial lineups in which a defendant has been
denied his or her Sixth Amendment right to counsel. The Court held,
however, that Wade was not entitled to automatic reversal of his conviction
“without first giving the Government the opportunity to establish by clear
and convincing evidence that the in-court identifications were based upon
observations of the suspect other than the lineup identification.”13
Therefore, the case was sent back to the trial court in order to give the
government the chance to prove that the in-court identification was not
tainted.

Page 346

When Counsel Need Not Be Present

If a defendant has not been formally charged with a criminal offense, he or
she is not entitled to the assistance of counsel at an identification
proceeding. When a suspect who has not been indicted or otherwise
formally charged is placed in a lineup, counsel need not be present.

One of the reasons counsel must be present at a post-indictment lineup is

the possibility that the accused will be misled by lack of familiarity with the
law or will be overpowered by a professional adversary. When a photograph
of the lineup or a photographic array is shown to a witness, however, the
accused is not present and cannot be misled or overpowered. Identifications
made prior to the initiation of adversarial judicial proceedings are
scrutinized under the Fifth and Fourteenth Amendments. The proscription is
against procedures that are unnecessarily suggestive and conducive to
irreparable mistaken identification.

Application Case

In Kirby v. Illinois,14 the victim of a robbery was taken to the police station,
where two defendants were seated at a table. Upon entering the station, the
victim immediately identified the defendants as the robbers. Neither
defendant asked for legal assistance, nor had either one been advised of the
right to have an attorney present.

In upholding the identification over a claim of denial of the right to counsel,

the United States Supreme Court declined to “impose a per se exclusionary
rule upon testimony concerning an identification that took place long before
the commencement of any prosecution whatever.”15 The Court reasoned
that a person’s Sixth Amendment right to counsel attaches only at or after
the time the adversarial judicial proceedings have been initiated. The Court
also stated that adversarial judicial proceedings commence by way of
formal charge, preliminary hearing, indictment, information, or
arraignment, for it is only then that the government commits itself to
prosecute and only then that adverse positions of government and defendant
solidify.

Although defendants are not entitled to the assistance of counsel before they
are formally charged, “a defendant may rebut this presumption [that
absence of counsel causes no harm] by demonstrating that despite the
absence of formal adversary judicial proceedings, the government had
crossed the constitutionally significant divide from fact-finder to
adversary.”16 This may occur when there is an unnecessary delay in
formally charging an accused in order to conduct a lineup. A lineup
identification under such circumstances could be found to be unlawful.
Page 347

Identification Procedures and Due

Process
Even if there is no violation of the Sixth Amendment’s right to counsel, an
identification may still be excluded if it is unnecessarily suggestive or in
some other way conducive to irreparable mistaken identification. At the
core of the issues relating to misidentification are the Due Process Clauses
of the Fifth and Fourteenth Amendments. These clauses preserve the right
to a fair trial. If a witness has been subjected to suggestive inducement to
identify the defendant, then the possibility of misidentification is increased.
In such a circumstance, the pretrial identification may be tainted. Moreover,
the in-court identification, flowing from the pretrial identification, may also
be objectionable. Allowing either or both identifications to come before the
jury when the witness has been subject to suggestive inducement could
deny the defendant a fair trial.

Effect of Illegal Pretrial Identification on In-Court

Identification
It is possible for an out-of-court identification to be illegal while the
identification made at trial is found admissible. On the other hand, if the in-
court identification is so influenced by the illegal out-of-court identification
as to be a product of it, then the in-court identification will not be
admissible, either. The test is whether the in-court identification is
sufficiently free of the taint from the out-of-court identification to be
trustworthy. Moreover, any case involving a legally questionable pretrial
identification inevitably involves the question of whether the in-court
identification should be admitted. For example, even the case of United
States v. Wade, which dealt with the right to counsel at a post-indictment
lineup, involved questions about the effects of that lineup upon a witness’s
ability to identify a suspect later, after the lineup.
The law enforcement professional must understand this two-staged aspect
of pretrial identification procedures. When a witness testifies at trial and
identification of the accused is involved, the witness is permitted to testify
to the fact that the defendant, seated in the courtroom, was the perpetrator.
In addition, the witness is permitted to testify to the fact that the perpetrator
was picked out during the identification procedure before trial.

Following is a sample transcript of a witness’s trial testimony involving

identification of the accused. In this case, the witness identified the accused
at a pretrial lineup where defense counsel was present and the procedure
was not suggestive.

1. Prosecutor: As you sit here today, looking around the courtroom, do

you see anyone who you can identify as the person who pointed a gun
at you on February 23 and told you, “Your money or your life?”

2. Witness: Yes, yes I do.

3. Prosecutor: Would you please point that person out, state where he or
she is sitting, and what he or she is wearing.

4. Witness: It is the man sitting at counsel table next to the defense

lawyer; he is dressed in a blue shirt with a red tie.

Page 348

5. Prosecutor: Your honor, may the record reflect the fact that the
witness has identified the defendant.

6. Judge: Yes, the record will so reflect.

7. Prosecutor: Turning your attention to the midmorning of February 25,

do you recall attending a lineup at the police station?

8. Witness: Yes, I do.

9. Prosecutor: At that lineup, did you identify anyone as the person who
robbed you two days before?
 10. Witness: Yes I did.

11. Prosecutor: And who was that person?

12. Witness: The same person I just identified in this courtroom.

The case of Gilbert v. California17 dealt with the effect of an illegal lineup
on testimony at trial, where the illegality was the denial of counsel. Gilbert
was indicted in a robbery-murder case. A lineup was conducted 16 days
later without notice to his court-appointed lawyer. Gilbert was identified by
three eyewitnesses to the crime, by the manager of the building he lived in,
and by eight other witnesses to other robberies that Gilbert allegedly had
committed. All of these witnesses not only identified Gilbert at trial but also
testified that they had identified him at the pretrial lineup. The three
eyewitnesses and building manager testified at the guilt phase of the trial.
The eight other witnesses testified at the penalty phase of the trial. Gilbert
was found guilty and sentenced to death.

The Supreme Court held that the lineup was unconstitutional under Wade,
because the lineup was held after indictment and without the presence of
Gilbert’s counsel. In addition, the Court held that the witnesses’ testimony,
which had identified Gilbert at the lineup, was subject to the exclusionary
rule because “that testimony is the direct result of the illegal lineup come at
by exploitation of (the primary) illegality.”18 The denial of the right to
counsel made the identification proceeding illegal, and no testimonial
reference to it at trial should have been permitted.

However, with respect to the in-court identifications, the Court reached a

different conclusion. A witness’s ability to identify a person might result
from the illegal lineup, or it might be based on an independent source
unaffected by the illegal identification procedure. There was no evidence
taken at the trial concerning the impact of the pretrial identifications upon
the witnesses’ in-court identifications. Therefore, the Court held that the
case was to go back (remanded) to the trial court for an evidentiary hearing
to find out how the lineup affected the witnesses at trial. Thus, an in-court
identification will be admitted only when the prosecution can show that the
witness’s identification was not influenced by a tainted pretrial
identification. Moreover, the prosecution must make that showing by clear
and convincing evidence, not just by a preponderance of the evidence.

Page 349

Only Unnecessarily Suggestive Pretrial

Identifications Are Illegal
It is possible for an out-of-court identification to be suggestive yet not be
illegal. The Supreme Court has considered cases in which practical
considerations led police officers to try to gain identifications under
circumstances that were suggestive. As a result of these cases, it may be
said that there is no per se exclusionary rule. The question is whether, under
the totality of the circumstances, the identification procedure was
unnecessarily suggestive.

The case of Stovall v. Denno19 dealt with the issues of suggestiveness in

identification procedures apart from the right to counsel. In Stovall, five
police officers took the defendant to the hospital, where one of the victims
of a robbery and stabbing was being treated for serious injuries inflicted by
her attacker. Stovall was handcuffed to a police officer, was placed in front
of the victim, and, at the direction of the police, repeated a few words for a
voice identification by the victim. He was the only Black man in the room,
and his counsel was not notified of the show-up. The victim testified at trial
concerning her hospital room show-up identification and made an in-court
identification. The Court rejected the right to counsel claim but turned to
the suggestiveness of the procedure for analysis.

The Court held that a pre- or post-indictment identification procedure that is

unnecessarily suggestive and conducive to irreparable mistaken
identification violates the due process rights of an accused. To determine
when an identification procedure is unnecessarily suggestive, the Court
stated that “a claimed violation of due process of law in the conduct of a
confrontation depends on the totality of the circumstances surrounding it.”20
In Stovall, showing the defendant to the victim in the immediate hospital
confrontation was imperative. Therefore, the Court held that, although the
show-up was unnecessarily suggestive, the circumstances—the fact that the
victim was the only person who could exonerate Stovall—made the show-
up necessary. Overall, the Court concluded, the show-up did not create a
likelihood of misidentification.

In Neil v. Biggers,21 the victim was called to the police station to view a
defendant seven months after being raped. Because the police could not
readily find any other people fitting the defendant’s unusual physical
characteristics, they held a show-up (two officers walked the accused past
the victim), at which the victim identified the defendant as the rapist. The
defendant claimed that the show-up was unreasonably suggestive. The
Court rejected the defendant’s claim, rejected again any per se exclusionary
rule for suggestive identification cases, and found that, under a five-factor
test, the identification of Biggers was reliable. Those five factors are22

1. the opportunity of the witness to view the criminal at the time of the
crime;

2. the witness’s degree of attention;

3. the accuracy of the witness’s prior description of the criminal;

4. the level of certainty demonstrated by the witness at the confrontation;

and

5. the length of time between the crime and the confrontation.

During the attack, the victim spent up to half an hour with the assailant. She
saw him under adequate artificial light in her house and under a full moon
outdoors. At least twice, she faced him directly and intimately. Her initial
description to the police was more than thorough and included the
assailant’s approximate age, height, weight, complexion, skin texture, build,
and voice. Furthermore, she had “no doubt” that the suspect was the person
who had raped her.23

Page 350
The principle that not all suggestive identification procedures will lead to
application of the exclusionary rule also applies to photographic
identifications. In the first case in which the Supreme Court of the United
States considered a suggestive eyewitness identification stemming from the
presentation of photographs to witnesses, Simmons v. United States,24 the
Court pointed out the dangers associated with suggestive presentation of
photographs to a witness. The danger of misidentification is greatly
increased if the police display to the witness only the picture of a single
individual who resembles the person that the victim saw. Misidentification
is also greatly increased if the police show the witness pictures of several
persons among which the photograph of a single individual recurs or in
some way is emphasized. The chance of misidentification is also heightened
if police indicate to the witness that they have other evidence that one of the
persons pictured committed the crime. Regardless of how such initial
misidentification comes about, the witness is more apt to retain in his or her
memory the image of the photograph rather than of the person actually
seen, reducing the trustworthiness of subsequent lineups or courtroom
identifications.

In Simmons, the FBI obtained six photographs from the sister of a suspected
bank robber in which the defendant appeared among a group of people. The
FBI showed the photographs to five witnesses, who identified Simmons as
one of two men who had robbed the bank. At trial, the five witnesses made
in-court identifications of Simmons as one of the robbers. No mention was
made of the pretrial photographic identifications. Relying on the Court’s
lineup cases of the year before, Simmons claimed that the pretrial
photographic identifications so influenced the witnesses that their in-court
identifications were tainted and that he was thereby denied due process.

The Supreme Court rejected the defendant’s arguments. After listing the
potential problems involved in photographic misidentification, the Court
noted that photographic identification procedures are widely and effectively
used in law enforcement. Moreover, effective cross-examination at trial can
lessen the effects of possible misidentification. Therefore, the Court refused
to prohibit the use of such procedures by law enforcement. Rather, the
Court held that the totality of the circumstances test applicable to lineups
should also be applied to photographic identification procedures, on a case-
by-case basis. In Simmons itself, the Court found that it was not
unnecessary for the FBI to resort to photographic identification and that
there was, in the circumstances of the case, little chance that the procedure
utilized led to misidentification of Simmons. The Court affirmed his
conviction.

Even though the Supreme Court pointed out these misidentification

dangers, the Court nonetheless applied to photographic identifications the
same totality of the circumstances test it had applied to lineups. Moreover,
the Court in Simmons, as well as in the subsequent case of Manson v.
Brathwaite,25 considering those circumstances, concluded that the
photographic identifications in both cases did not violate the accused’s due
process rights. The Court found this to be so even though, in both cases, the
photographic identification procedures were suggestive.

Page 351

Application Case

In Manson v. Brathwaite,26 an undercover police officer purchased heroin

through an open doorway while standing within two feet of the seller for
two to three minutes. After the buy, the undercover officer described the
seller to other officers as “a colored man, approximately five feet eleven
inches tall, dark complexion, black hair, short Afro style, and having high
cheekbones, and of heavy build.”27 One of the officers, recognizing the
description of the individual, obtained a photo of him and left it in the
undercover officer’s office. While alone, the undercover officer viewed the
photo for the first time and identified the person in it as the seller. The
identification led to the arrest, trial, and conviction of the defendant. At the
trial, the undercover officer testified about the photographic identification,
the photograph was admitted into evidence, and the officer made an in-court
identification of the accused.

The Supreme Court of the United States reviewed the case for a violation of
Brathwaite’s due process rights. The Court noted that the identification
procedure in this case was suggestive (because only one photograph was
used) and unnecessary (because there was no emergency or exigent
circumstance). The Court rejected a per se rule approach to cases involving
unnecessarily suggestive photo identifications. Rather, the Court applied the
totality of the circumstances test measured by a requirement that the
identification possess certain features of reliability. According to the Court,
“reliability is the linchpin in determining the admissibility of identification
testimony … and the factors to be considered are those set out in
Biggers.”28 Those factors include the opportunity of the witness to view the
criminal at the time of the crime, the witness’s degree of attention, the
accuracy of his or her prior description of the criminal, the level of certainty
demonstrated at the confrontation, and the time between the crime and the
confrontation.29 Against these factors, the Court said, is to be weighed the
corrupting effect of the suggestive identification itself. Applying these
principles to the case before it, the Court found that the identification
procedure did not violate due process, and the Court affirmed the
defendant’s conviction.

The law applicable to pretrial identification procedures can be summarized

rather simply. When a defendant raises a question about the suggestiveness
of a pretrial identification procedure, the trial court must first determine if
the identification procedure was unnecessary and suggestive. If not, the
court should admit the pretrial and in-court identifications by the witness.
However, if the trial court finds the procedure to be unnecessary and
suggestive, the court must then determine whether, under the totality of the
circumstances, the suggestiveness of the procedure would give rise to a
very substantial likelihood of irreparable misidentification on the one hand,
or whether the identification possessed features of reliability. The reliability
features utilized are those five enumerated in the Biggers case. Against
these factors is to be weighed the corrupting effect of the suggestive
identification itself. If, after applying the Biggers factors, the court finds the
identification procedure reliable, the court should admit that identification,
regardless of its suggestiveness.

Page 352

The problems associated with misidentification stemming from an

unnecessarily suggestive pretrial identification procedure can be illustrated
by consideration of what a juror might think while observing an in-court
identification of an accused by a witness. When the witness is asked if he or
she sees in the courtroom the perpetrator of the act on trial, a juror is likely
to wonder whether the witness has seen the perpetrator between the time of
the event and the beginning of the trial. The defendant is usually seated at
the lawyer’s table in the courtroom. Anyone observing that scene will
recognize who is on trial and from that alone could identify the accused.
Moreover, most people have watched television shows or films that depict
the identification procedures widely in use by law enforcement. Thus, any
juror is likely to wonder which, if any, of those procedures were used in the
case on trial.

FYI

Federal Jury Practice and Instructions Criminal § 14.10 Eyewitness;

Identification of the Defendant

One of the [most important] issues in this case is the identification of

Defendant as the person who committed the crime[s] charged in
[Count[s] of] the indictment. The government, as you know, has the
burden of proving every issue, including identity, beyond a reasonable
doubt. Although it is not essential that the witness testifying about the
identification [himself] [herself] be free from all doubt as to the accuracy or
correctness of the identification, the jury must be satisfied beyond a
reasonable doubt that Defendant is the same person who committed
the crime[s] charged. If you are not convinced beyond a reasonable doubt
that Defendant was the person who committed the crime[s] charged in
[Count[s] of] the indictment, you must find Defendant not guilty.

Identification testimony is, in essence, the expression of an opinion or a

belief by the witness. The value of the identification depends upon the
opportunity that the witness had to observe the person who committed the
crime at the time of the offense and the opportunity to make a reliable
identification at a later time.

In judging the identification testimony of any witness you should consider

at least the following questions:
 1. Are you convinced that the witness had the ability and an adequate
opportunity to observe the person who committed the crime charged?

Whether the witness had an adequate opportunity to observe the

person committing the offense at the time of the offense will be
affected by many things, including the length of the observation, the
distance between the witness and the person observed, the lighting
conditions, and whether the witness knew the person from some prior
experience.

2. Are you convinced that the identification by the witness after the
offense was committed was the product of [his] [her] own
recollection?

In making this determination you may take into account both the
strength of the later identification and the circumstances under which
the later identification was made.

If the identification by the witness was influenced by circumstances

under which the identification was made, you should examine that
identification with great care. You may wish to consider the length of
time that had elapsed between the commission of the crime and the
later opportunity of the witness to observe the defendant.

You may consider that an identification made by pointing out a

defendant from a group of similar individuals is generally more
reliable than an identification which results from a presentation of the
defendant alone to the witness.

3. Has the witness failed to identify the defendant on a prior opportunity

or has the witness identified someone else as the person who
committed the offense charged? You should examine and consider the
credibility of any witness making an identification in the same manner
as you would any other witness.

The burden of proving the identity of Defendant as the person who

committed the crime[s] charged in [Count[s] of] the indictment rests
totally with the government. The government must prove the identity of the
defendant as the person who committed the crime[s] charged beyond a
reasonable doubt. If, after examining all of the evidence, you have a
reasonable doubt as to whether the defendant was the individual who
committed the crime[s] charged, you should find Defendant not guilty.

Page 353

For these reasons alone, the facts surrounding all identification encounters
between suspects and witnesses should be presented to the jury for its
consideration of the validity of the pretrial identifications and their effect
upon in-court identifications. The same considerations also illustrate the
fact that the judge will first decide whether any pretrial identifications have
been unduly suggestive. Finally, these considerations demand that the law
enforcement professional take the appropriate steps to avoid unnecessary
and suggestive identifications and to document the facts surrounding those
encounters.

The unreliability of eyewitness testimony has been a topic of concern in the

courts as well as in society generally in the United States. One of the effects
of this concern is law discussed in this chapter: the exclusionary rule
applied to improperly obtained eyewitness identifications. However, as to
such testimony generally, the law also gives the jury specific instructions on
how to look at the evidence. In the accompanying boxes are two of those
instructions currently in use, the first in federal courts and the second in
California courts.
Types of Suggestive Identification
Procedures
Size of the Lineup or Array
A law enforcement officer presenting a single person or photograph—a show-up
—is one of the most suggestive identification procedures. Repeated encounters
between the witness and the suspect or the repeated presentation of images of the
same suspect in a single photographic array is also highly suggestive. Therefore,
the officer should take care to avoid such practices.

FYI

Judicial Council of California Criminal Jury Instructions (2018) 315

Eyewitness Identification

You have heard eyewitness testimony identifying the defendant. As with any
other witness, you must decide whether an eyewitness gave truthful and accurate
testimony. In evaluating identification testimony, consider the following
questions:

Did the witness know or have contact with the defendant before the event?

How well could the witness see the perpetrator?

What were the circumstances affecting the witness’s ability to observe, such
as lighting, weather conditions, obstructions, distance, [and] duration of
observation [, and <insert any other relevant circumstances>]?

How closely was the witness paying attention?

Was the witness under stress when he or she made the observation?

Did the witness give a description and how does that description compare to
the defendant?
 How much time passed between the event and the time when the witness
identified the defendant?

Was the witness asked to pick the perpetrator out of a group?

Did the witness ever fail to identify the defendant?

Did the witness ever change his or her mind about the identification?

How certain was the witness when he or she made an identification?

Are the witness and the defendant of different races?

[Was the witness able to identify other participants in the crime?]

[Was the witness able to identify the defendant in a photographic or physical

lineup?]

[<insert other relevant factors raised by the evidence>.]

Were there any other circumstances affecting the witness’s ability to make an
accurate identification?

The People have the burden of proving beyond a reasonable doubt that it was the
defendant who committed the crime. If the People have not met this burden, you
must find the defendant not guilty.

Page 354

On the other hand, as the cases discussed earlier in this chapter indicate, even
though the use of a single photograph or show-up is highly suggestive, a court
will nonetheless justify its use in certain emergency or exigent circumstances. For
example, if the witness is injured and it is not clear he or she will live, courts have
held that such a procedure is justified.30

Collaboration Between Witnesses

Collaboration between witnesses increases the rate of misidentification, making it
a highly suggestive identification procedure. Officers should keep witnesses apart
while they view both photographic spreads and lineups. For example, in one
case,31 a police officer passed a car matching the description of the getaway car
involved in an earlier bank robbery. The officer briefly viewed the driver. The
officer and a bank teller then examined two sets of photographs together. The
officer saw the teller choose the photograph of the defendant. Although the court
found that there was sufficient reliability in this and other identifications, the
court stated a strong preference for separating the witnesses during the
identification procedure.

Police Instructions or Statements to Witnesses

There are substantial risks involved in officers giving instructions to witnesses
who are about to engage in an identification procedure. So, the officer should take
special care. Officers should not tell a witness that the photo array or the lineup
includes a defendant already in custody, since the witness may then be more
likely to choose the person who most closely resembles the person they observed,
rather than selecting no one at all. Officers should avoid providing information or
making statements that cause a witness to focus on a particular suspect, as such
actions are also highly suggestive. In one case,32 an FBI agent showed a witness a
photo array that she narrowed down to two photographs, finally choosing one.
The agent then told her that she had chosen incorrectly and the other photograph
was the suspect believed to have committed the robbery. The court held that this
was sufficient to create a very substantial likelihood of irreparable
misidentification and reversed the defendant’s conviction. Although statements to
witnesses by the police are not condoned, if the officer makes a neutral inquiry
into the witness’s choice, without focusing his or her attention on a specific
defendant, the statement or question is then not viewed as suggestive but merely
as investigatory.

Therefore, the rule on police statements and inquiries is that, when the police
pose a neutral question or are following proper police practices to determine the
strength of an identification, the procedure is not unnecessarily suggestive.
However, if the police make statements that focus the witness’s attention on a
single person or picture, or if the police threaten the witness if he or she does not
cooperate, such actions are considered highly suggestive procedures that might
cause a court reviewing the identification to conclude that the identification was
the result of unnecessary suggestiveness.

Page 355

ON THE JOB
During lineups, show-ups, and photographic arrays, officers should record all
instructions given to and conversations with the witnesses. Such recordings will
help rebut any allegations from the defense that the identification process was
unnecessarily suggestive.

Composition of the Lineup or Photo Array

Regardless of the size and manner of the identification procedure, it may be
unnecessarily suggestive based on the composition, or content, of the lineup or
photo array. Situations relating to composition that the officer should avoid
include placing the accused with others of a different race in the lineup or array,
asking the accused to dress in a particular way, and presenting others in the lineup
or array who are so dissimilar in appearance to the defendant that he or she stands
out. If the composition of the lineup or array focuses the attention of the witness
on a particular suspect, it is likely to be viewed as suggestive, and the trial court
will have to decide the effect under the totality of the circumstances test.

Different Appearance of the Accused

The most important thing in creating a lineup or photo array is that the lineup or
array includes persons matching the defendant’s general physical description. As
the courts have put it,

Police stations are not theatrical casting offices; a reasonable effort to

harmonize the lineup is normally all that is required.33 … The test is whether
the picture of the accused, [or the defendant himself in a lineup], matching
descriptions given by the witness, so stood out from all the other
photographs as to suggest to an identifying witness that that person was
more likely to be the culprit.34 … The individuals in the photographic
display and lineup [should be] of the same race, possess similar physical
features, and be alike in size, age, and dress.35

Other Suggestive Procedures Pertaining Solely to

Photo Arrays
Different Type or Quality of Photos
A test used to determine if the type or quality of the photo is suggestive is
whether the difference in photos tends to draw attention to a particular
defendant’s photograph. The quality of the photos needs to be similar enough that
a witness’s attention will not be drawn to one photo because it stands out for
some reason. This issue usually appears when both black-and-white and color
photographs are used in the same array. Similarly, if the appearance of the photo
(old versus new, faded versus not faded) is substantially different, the
identification is suggestive.

ON THE JOB

Photographic arrays are also known as “six-packs” because most officers use six
photographs in their array. When using a six-pack, the officer should have the
witness circle the photograph of the suspect identified and put the date and his or
her initials next to the circle. This enables the witness to identify the photograph
card positively in court if there is a substantial lapse of time before the trial
begins and the witness forgets what the defendant looks like.

Page 356
 To aid in suspect identification, computerized photographic arrays can
be quickly assembled. The technician keys in the physical
characteristics reported by the victims or witnesses that he or she wants
displayed in each of several panels of composite photographs. The
system then assembles and inserts the photograph of the suspect into
the photographic array.

RICHARD NOWITZ/Science Source

The use of both black-and-white and color photographs in the same array is
generally discouraged. In one case,36 the witness was shown a small group of
photos, only two of which (the accused and another suspect) were fresh and in
color. The officer then asked the witness if those were the two “fellows.” The
court found that the dramatic difference between the color shots and the black-
and-white mug shots, combined with the officer’s implication that the witness
was expected to choose two of the photos, was highly suggestive. In another
case,37 a witness was shown one color photograph with 11 black-and-white mug
shots. The court found the procedure inherently suggestive and stated, “This color
photograph of the [accused] stood out like the proverbial ‘sore thumb.’”38

ON THE JOB

Officers often show witnesses several arrays, only one of which has the defendant
in it. The officer should keep the array that the witness chose, as well as record
what other arrays were shown to the witness (photocopying the six-packs is a
good idea). This will aid the officer and prosecutor in court in the event the
defense alleges that unnecessarily suggestive arrays were presented to the
witness.

Also, remember that, if all of the photographs in the array look too much alike,
the array will be subject to the criticism that the right suspect could not be picked
out. On the other hand, if any one of the photographs in the array is different in
some obvious way, the array will be subject to the criticism that it was suggestive.

Contents on and Around the Photographs

Not only do the type and quality of photos provide a constitutional basis to
challenge a photo array, but superfluous markings on photographs may also give
rise to such a challenge. Matters such as captions stating where the person
depicted was arrested, the use of photo arrays in which the accused’s photo
contains a height measurement chart, and the surroundings in which a suspect is
depicted generally (e.g., in a hospital room) have all been the bases for
defendants’ attacks upon photo identifications. While few of these attacks have
been successful, the wise course for any officer is to present photographs as
nearly similar in all respects as possible.

Page 357

Alteration and Disguise of the Photographs

Although the digital alteration of all photographs in an array may be permissible,

if only one picture is altered, a subsequent identification may be held to be
suggestive on that ground.39 If an officer requires a suspect to wear a disguise for
his or her photo, the identification will not be viewed as suggestive if others in the
array are also required to wear the same disguise.
Determining the Reliability of a
Suggestive Identification: The Five
Factors of the Biggers Case
In the Biggers40 case, the United States Supreme Court set forth five factors
for determining the reliability of a suggestive identification. Put another
way, the question is whether, even though the pretrial identification
procedure may have been unnecessary and suggestive, the identification is
clothed with indicia of reliability. If the identification is reliable, even
though the pretrial identification procedure was suggestive, the
identification is admissible. These factors allow the trial court to determine
if the witness had an independent basis, other than the suggestive
procedure, for his or her identification. If the trial court finds that there was
an independent basis for the witness’s in-court identification, the
identification will be allowed.

The five factors set out in Biggers that must be examined are

1. the witness’s opportunity to view the criminal at the time of the crime;

2. the witness’s degree of attention;

3. the accuracy of the witness’s prior description of the criminal;

4. the level of certainty demonstrated by the witness at the confrontation;

and

5. the length of time between the crime and the confrontation.

In applying these factors, the courts have found that witnesses’

identifications are more reliable

1. the longer the witness’s opportunity to view the offender;

 2. the greater the attention the witness gives the offender at the time of
the offense;

3. the more detailed the initial description from the witness;

4. the greater the certainty demonstrated by the witness; and

5. the shorter the length of time between the crime and the lineup.

Witness’s Opportunity to View the Criminal at the

Time of the Crime
The test of reliability based on the witness’s opportunity to view the
criminal at the time of the crime is not dependent upon duration of time
alone. Rather, opportunity relates to other factors. For example, in one
case,41 the witness testified that he had seen the defendant ten or fifteen
times over a year-and-a-half period, from close range, in adequate light, and
for a few minutes at a time. Each time the witness met the defendant, the
witness was wearing his glasses and observed the defendant during daylight
hours. These incidents supplied the witness with an independent basis to
recognize the defendant, and therefore the trial court allowed the witness’s
in-court identification of the accused, even though the witness had also
identified the defendant in an unnecessarily suggestive photographic array.

Page 358

In another case,42 a witness to a robbery picked out the accused in a lineup

that was unnecessarily suggestive. However, the witness, during the
robbery, saw the assailant’s face for more than a minute, at a distance of
only two to three feet—ample time to view him adequately. The witness
also made a positive identification of the defendant while viewing a
videotape only five days after the robbery. Based on the witness’s time to
view the defendant and her certainty, the trial court admitted the
identification as reliable under the totality of the circumstances.

Other circumstances in which reliable independent identifications have

been allowed include when the witnesses’ observations of a suspect lasted
anywhere from 14 seconds to 30 minutes. The test used to determine if the
opportunity to view the defendant was adequate is whether the observations
were from close range and with fairly good lighting.43 The general rule is
that, if the witness had a good opportunity to view the defendant, then even
if the pretrial identification was suggestive, it will be admissible because
the viewing opportunity provided an independent basis for the
identification.

However, the law enforcement officer should still strive to avoid the use of
a suggestive pretrial identification procedure. Courts will still look to the
other Biggers factors, and, if under the totality of the circumstances the in-
court identification does not appear to be reliable, it could be found
inadmissible.

Witness’s Degree of Attention

The second Biggers factor is whether the degree of attention the witness
paid to the suspect during the event was sufficient that one could say that
the witness’s ability to identify the accused in court was based on the
independent identification and not upon an unnecessarily suggestive
identification procedure before trial. Several examples of cases will help
illustrate the point.

In one case,44 the witness was too busy fighting with one man to see the
other, the defendant. In another case,45 five teenage boys were unexpectedly
confronted by two men, one of whom was holding a rifle. The man aimed
the gun in the air and fired it. The boys continued walking, and one man
shot and killed one of the boys and wounded another. The defendant was
taken to the police station later that day to be viewed by the boys. The
police asked the boys, “This is him, isn’t it?”—to which the boys replied
affirmatively. The court held that, since a show-up is presumptively more
suggestive than a lineup, as well as totally unnecessary, the court had to
decide whether, under the totality of the circumstances, the identification
was reliable. The court held that the boys’ degree of attention to the
defendants fell well short of the level necessary to find their identification
reliable. While the boys were able to describe the automobile used by the
men and the rifle used by the shooter, they had only a minute to view the
entire crime scene, including the defendants. The time the boys spent
looking at things other than the defendants detracted from their ability to
identify the defendants reliably. The court stated, “When one is identifying
magnesium wheels, one is not looking at someone’s face.”46 Therefore, the
boys’ degree of attention was not adequate to find the identification
reliable.

Page 359

The court must also consider whether an ordinary citizen, suddenly

confronted by an armed robber, would be carefully observing the person in
order to ensure an accurate description later on or simply staring at the
muzzle of the gun. On the other hand, if the witness has been trained to
have special observational skills, such as a police officer, the degree of
attention required is far lower than that for an ordinary witness. This is
based upon the belief that police officers pay a higher degree of attention to
details than a lay witness because of the special training they receive in
observational techniques. For example, in Manson v. Brathwaite, the officer
bought two glycine bags of heroin through a door that was open only a few
inches. The court held that, since Trooper Glover was a specially trained
and experienced officer, he could be expected to pay scrupulous attention to
detail.47 The court recognized that Trooper Glover, because of his
background, knew that he would subsequently have to find and arrest the
vendor, as well as have his observations subjected to close scrutiny and
examination at trial. Thus, Trooper Glover paid extra attention to all the
details, especially the defendant’s appearance.

Accuracy of the Description

There is no set rule for determining how accurate an initial description of
the defendant must be in order to find the identification reliable on an
independent basis. The courts tend to look at whether the witness was able
to approximate the defendant’s age, build, height, weight, skin color, and
clothing, as well as any other physical characteristics. For example, in the
case in which the five boys were stopped by the men with a rifle, the court
held that they had rarely seen a case in which a defendant had been more
poorly described. The only description one boy could give was that his
attacker wore a white T-shirt and that he had shaggy hair. “Not one of the
witnesses gave the assailant’s age, build, height, weight, skin color, other
clothing or other indicia of appearance.”48 The boys gave only broadly
generalized descriptions that could have matched a number of people.

Manson v. Brathwaite again provides an excellent contrast. There, the

witnessing undercover officer gave a detailed description to another officer
shortly after completing his transaction with the defendant. “It included the
vendor’s race, his height, his build, the color and style of his hair, and the
high cheekbone facial feature. It also included clothing the vendor wore.”49
Hence, even though the witness viewed the single photograph of the
defendant two days later in a suggestive procedure, the Court held that,
coupled with other indicia of reliability, the accuracy of the officer’s initial
description helped prove the reliability of his identification.

The standard of reliability for the initial description given by the witness
falls somewhere between the two illustrative cases. Moreover, the standard
is not fixed. Therefore, the witness’s initial description of the suspect should
be as detailed as possible. If a witness is not sure about a certain
characteristic of the criminal, he or she should not guess. Instead, the officer
taking the statement should record every thought expressed by the witness
related to the perpetrator’s description. Then, if the initial description is not
completely accurate, there will be an exact record of what the witness said.
Coupled with other factors of reliability, the court may find that the
witness’s identification is reliable based on the accuracy of the initial
description, even though he or she viewed a suggestive lineup, show-up, or
array.

Page 360

Level of Certainty Demonstrated by the Witness

at the Confrontation
Two issues surround the certainty of a witness: First is the degree of
certainty required to support the admissibility of an identification, and
second is the point at which the witness became certain. For example, in
one case,50 the witness saw her assailant for a period of three to four
seconds from a distance of forty-five feet. When the witness said she was
95 percent sure of both her identification in a lineup before the trial and her
in-court identification, the court believed her. The alleged suggestiveness
occurred after the pretrial lineup and consisted of an officer telling the
witness that the perpetrators were in custody. Because of the court’s reliance
on the high level of certainty before the suggestiveness occurred, this case
demonstrates that the certainty of the witness must be used in conjunction
with the other factors of reliability to find that the identification was reliable
under the totality of the circumstances.

Courts have also found identifications reliable when the witness has shown
a much lower level of certainty. In one case,51 Wozniak, a witness to a bank
robbery, had three to four minutes to observe the robber. She gave the
police a description of the robber’s race, height, weight, clothing,
complexion, hair, facial hair, and tone of voice. Two days later, she viewed
the surveillance photographs and pointed out the robber. However, in a
later, nonsuggestive photo array, she could only say that a photo of the
defendant, who was depicted without the facial hair he had at the time of
the robbery, “looked like” the perpetrator, although she was sure that none
of the other five persons in the photo spread was the robber. The defendant
was arrested on an unrelated charge and photographed with his beard, and
the FBI case agent brought the photo to Wozniak’s attention. Upon seeing
this photo, she was positive that it was the man who had committed the
robbery. The court held that, although the manner in which Wozniak’s
attention was directed to the photo was suggestive, there was sufficient
independent indicia of reliability to admit the identification. The court ruled
that, in addition to other factors, the entire set of circumstances present,
including her “looks-like” identification from the six-person photo spread,
provided an ample independent basis for her identification of the defendant.

Although the certainty of the witness is very important in determining the

reliability of the identification of a defendant, if that certainty is not shown
at the initial confrontation, a trial court is not likely to credit the
identification as reliable. As the Simmons court recognized, “Regardless of
how the initial misidentification comes about, the witness thereafter is apt
to retain in his memory the image of the [suggestive] photograph [or lineup]
rather than of the person actually seen, reducing the trustworthiness of
subsequent lineup or courtroom identification.”52

Length of Time Between the Crime and the

Confrontation
The shorter the time interval between the crime and the identification, the
more reliable it is. Nonetheless, a long interval alone is usually not enough
to invalidate an otherwise seemingly reliable identification.

Page 361

Starting in Biggers itself, the United States Supreme Court held that a lapse
of seven months between the rape and the confrontation was a seriously
negative factor.53 The Court has upheld this standard in a number of
subsequent cases. In one case,54 the Court held that the eight months
between a robbery and the in-court confrontation was the factor most
negatively affecting reliability. In another case,55 the court held that a nine-
month delay did not weigh in favor of admissibility. Although these time
delays posed a problem with respect to finding the identification reliable, in
all three of these cases, the courts found that under the totality of the
circumstances the identifications were reliable.

Thus, a delay of more than seven months between the crime and the
identification procedure is likely to be considered a negative reliability
factor under the totality of the circumstances. However, where the other
factors tend to demonstrate the reliability of the identification, the courts
have not held the identification inadmissible due to the time delay.
Therefore, the best way to ensure that time will not be a negative factor is to
set up a nonsuggestive confrontation between a witness and a suspect as
soon as possible.

In October 1999, the U.S. Department of Justice released a report

(“Eyewitness Evidence: A Guide for Law Enforcement”) that suggested
ways in which eyewitness identification can become more reliable.56 Some
of the suggestions relating to lineups are that the procedure should contain a
minimum of five fillers (non-suspects) who generally fit the witness’s
description of the perpetrator. The suspect and the fillers should all share
the same unique features, e.g., scars and tattoos. The officer is cautioned to
avoid using fillers who so closely resemble the suspect that a person
familiar with the suspect might find it difficult to distinguish the suspect
from the fillers. The suspect should be in different positions in each lineup,
both across cases and with multiple witnesses in the same case, and the
officer should position the suspect randomly in the lineup. If a new suspect
is shown, the officer should avoid reusing fillers in lineups shown to the
same witness.

The Department of Justice guide contains instructions to be given to the

witness prior to viewing a lineup to ensure that the witness understands that
the purpose of the identification procedure is to exculpate the innocent as
well as to identify the actual perpetrator. The officer should instruct the
witness that the person who committed the crime may or may not be in the
set of photographs, or in the lineup. Further, the officer should assure the
witness that, regardless of whether an identification is made, the police will
continue to investigate the incident.

In place of the six-pack procedure, the guide suggests that individual

photographs be placed in random order and viewed one at a time and that
the witness be told to take as much time as needed in making a decision
about each photo before moving to the next one. The guide suggests that, if
an identification is made, the officer should avoid reporting to the witness
any information regarding the individual selected prior to obtaining the
witness’s statement of certainty. The guide also says that, when presenting a
simultaneous live lineup, the investigator should instruct everyone at the
lineup not to suggest in any way the position or identity of the suspect in the
lineup, for that will influence the witness’s selection. Finally, the guide
reiterates instructions usually given to law enforcement officers, such as
they should avoid saying anything to the witness that may influence the
witness’s selection and the information that should be included in reports.

Page 362

In 2014, the National Academy of Science published a report on its findings

related to eyewitness identification.57 The report made three sets of
recommended best practices, the first set relating to law enforcement
procedures. Those best practices are

1. Train All Law Enforcement Officers in Eyewitness Identification

2. Implement Double-Blind Lineup and Photo Array Procedures

3. Develop and Use Standardized Witness Instructions

4. Document Witness Confidence Judgments

5. Videotape the Witness Identification Process

Then, in January 2017, Deputy Attorney General Sally Q. Yates issued a

memorandum to Department of Justice law enforcement and prosecutors
relating to photo array identifications. Attached to the memorandum was a
report of experts within the Department setting forth recommended
procedures.58 This memo and report noted, among other things, an evolving
preference for a sequential (one photo at a time) rather than a simultaneous
(multi-photo at one time) presentation procedure.
Review and Application
Summary
1. The three basic types of identification procedures are lineup, show-up,
and photographic array.

2. An accused is entitled to counsel at a post-indictment lineup that is

conducted for identification purposes—a critical stage of a criminal
proceeding.

3. A defendant who has not been formally charged with a criminal

offense is not entitled to counsel at an identification proceeding.

4. The constitutional grounds for an accused’s claim of misidentification

before and at trial are the Due Process Clauses of the Fifth and
Fourteenth Amendments.

5. When a pretrial identification procedure has been deemed

unnecessarily suggestive, the witness’s in-court identification may be
allowed if the prosecution can show by clear and convincing evidence
that the witness’s identification is independent of the tainted pretrial
identification procedure.

6. The test for excluding evidence of a pretrial identification on grounds

of suggestiveness is whether, under the totality of the circumstances,
the identification procedure was unnecessarily suggestive.

7. The five Biggers factors for determining whether a suggestive pretrial

identification procedure creates such a likelihood of misidentification
as to violate due process are (1) the witness’s opportunity to view the
criminal at the time of the crime; (2) the witness’s degree of attention;
(3) the accuracy of the witness’s prior description of the criminal; (4)
the level of certainty demonstrated by the witness at the confrontation;
and (5) the length of time between the crime and the confrontation.
 Page 363

8. A summary of the law applicable to identifications is as follows: When

a defendant raises a question about the suggestiveness of a pretrial
identification procedure, the trial court must first determine if the
identification procedure was unnecessary and suggestive. If it was not,
the court should admit the pretrial and in-court identifications by the
witness. However, if the trial court finds the procedure to be
unnecessary and suggestive, the court must then determine whether,
under the totality of the circumstances, the suggestiveness of the
procedure would give rise to a very substantial likelihood of
irreparable misidentification or whether the identification possessed
features of reliability. The reliability features utilized are the five
enumerated in the Biggers case.

9. Some situations that the law enforcement officer should avoid with
respect to the composition of a lineup or photographic array include
placing the accused with others of a different gender in the lineup or
array, asking the accused to dress in a particular way, and presenting
others in the lineup or array who are so dissimilar in appearance to the
defendant that the defendant stands out.

10. The purpose of the Biggers five-factors analysis is to determine

whether a witness’s in-court identification is independent of a
suggestive pretrial identification procedure—i.e., whether the in-court
identification is reliable.

Key Terms
lineup 344

show-up 344

photographic array 344

critical stage 345

 totality of the circumstances (identification) 349

emergency or exigent circumstances 354

indicia of reliability 357

Questions for Review

1. What are the three basic types of identification procedures?

2. When is an accused entitled to counsel at an identification procedure?

3. When is an accused not entitled to counsel in connection with an

identification procedure?

4. What are the constitutional grounds for an accused’s claim of

misidentification before trial and at trial?

5. What is the test for allowing an in-court identification by a witness

whose pretrial identification was tainted by an unnecessarily
suggestive pretrial identification procedure?

6. What is the test for excluding evidence of a pretrial identification on

grounds of suggestiveness?

7. What are the five factors set forth in the Biggers case to determine
whether a suggestive pretrial identification procedure creates such a
likelihood of misidentification as to violate due process?

8. What is the law applicable to identifications when there is a claim that

a pretrial identification procedure was suggestive?

Page 364

9. What are several situations that the law enforcement officer should
avoid with respect to the composition of a lineup or photographic
array?
10. What is the purpose of the Biggers five-factors analysis?

Thinking Critically About Evidence

1. List several factors that can be used to make a show-up, lineup, and
photographic array so unnecessarily suggestive as to invoke the
exclusionary rule.

2. Having the defense counsel present at a post-indictment lineup can

sometimes make the procedure difficult. If a lineup occurs before the
defendant is formally charged, then the lineup can take place without
an attorney. Do you think it would be proper for a law enforcement
officer to delay filing a complaint intentionally against an accused
solely for the purpose of having a lineup without the presence of the
defense counsel?

Workplace Applications
1. You have a witness to an armed robbery. The witness is shot and is in
the hospital in critical condition but is conscious and able to answer
questions. Write a step-by-step plan on how you would conduct a
show-up, lineup, and photographic array with this witness to establish
identification.

2. A robbery occurred at noon on Thursday, and the eyewitness described

the robber as a tall, young, white male with dark hair, wearing a red
shirt and blue jeans and carrying a gun. During a show-up at 1 o’clock
Saturday morning, the police take the witness to the defendant, who is
several miles from the crime scene. The suspect is sitting in the back
of a police car; when the witness arrives, the suspect is taken out of the
car. The police shine their vehicle spot light on the suspect, and the
witness can see that the suspect is in handcuffs. The suspect is a 20-
year-old, 5’10” white male with brown hair, but he is wearing a white
T-shirt and blue sweatpants. There is a gun sitting on the hood of the
police car. Is the show-up so unnecessarily suggestive as to warrant the
application of the exclusionary rule?
 3. You are preparing photographic arrays for a witness to view in a case
in which you have photographs of two suspects. Can you place the
suspects’ photos together on a single array, or do you have to place
them on separate cards? For one defendant, the only picture you have
of her is a booking photograph. Do all the other photographs have to
be booking photographs? How many photographs do you have to use
on a card to avoid unnecessary suggestiveness?

Ethical Dilemma
1. Earlier in the week, you conducted a photographic array, or six-pack,
with the only eyewitness to a double homicide. The witness correctly
picked out the defendant and circled his photograph as you instructed,
but you forgot to tell the witness to initial and date the six-pack card.
Two weeks later, you realize that all you have is the six-pack, with a
circle around the defendant, and no way of authenticating the card in
court as the same card the witness looked at earlier. Do you call the
witness back to the station and have him place his initials on the card
next to the circle?

Page 365

Endnotes
1. United States v. Wade, 388 U.S. 218 (1967) (footnote omitted).

2. United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388
U.S. 263 (1967); Stovall v. Denno, 388 U.S. 293 (1967).

3. Scott v. Illinois, 440 U.S. 367 (1979), interpreting Argersinger v.

Hamlin, 407 U.S. 25 (1972), and Gideon v. Wainwright, 372 U.S. 335
(1963).

4. United States v. Wade, 388 U.S. 218, 225 (1967), quoting Powell v.
Alabama, 287 U.S. 45, 57 & 69 (1932).

5. Massiah v. United States, 377 U.S. 201 (1964).

 6. 384 U.S. 436 (1966).

7. United States v. Wade, 388 U.S. 218 (1967).

8. United States v. Ash, 413 U.S. 300, 316 (1973).

9. Wade, 388 U.S. at 226.

10. 388 U.S. 218 (1967).

11. Id. at 228.

12. Id. at 236–37.

13. Id. at 240.

14. 406 U.S. 682 (1972).

15. Id. at 690.

16. United States v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992).

17. 388 U.S. 263 (1967).

18. Id. at 272–73, quoting Wong Sun v. United States, 371 U.S. 471, 488
(1963).

19. 388 U.S. 293 (1967).

20. Id.

21. 409 U.S. 188 (1972).

22. Id. at 199–200.

23. Id. at 200.

24. 390 U.S. 377 (1968).

25. 432 U.S. 98 (1977).

26. Id.

27. Id. at 100.

28. Id. at 114.

29. Id.

30. See, e.g., Herrera v. Collins, 904 F.2d 944 (5th Cir. 1990).

31. United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985), cert.
denied, 475 U.S. 1023 (1986).

32. United States v. Russell, 532 F.2d 1063 (6th Cir. 1976).

33. United States v. Lewis, 547 F.2d 1030, 1035 (8th Cir. 1976), cert.
denied, 429 U.S. 1111 (1977).

34. United States v. Jakobetz, 955 F.2d 786, 803 (2d Cir. 1992).

35. Salam v. Lockhart, 874 F.2d 525, 528 (8th Cir. 1989), cert. denied, 493
U.S. 898, 1989.

36. Styers v. Smith, 659 F.2d 293 (2nd Cir. 1981).

37. Passman v. Blackburn, 652 F.2d 559 (5th Cir. 1981), cert. denied, 455
U.S. 1022 (1982).

38. Id. at 570.

39. United States v. Dunbar, 767 F.2d 72, 73 (3d Cir. 1985).

40. Neil v. Biggers, 409 U.S. 188 (1972).

41. United States v. Damsky, 740 F.2d 134, 140 (2d. Cir.), cert. denied,
469 U.S. 918 (1984).

42. United States v. Donahue, 948 F.2d 438 (8th Cir. 1991), cert. denied,
503 U.S. 976 (1992).
43. Id. See also Herrera v. Collins, 904 F.2d 944, 948 (5th Cir.) (witness
saw defendant in headlights for about fourteen seconds at fifteen feet),
cert. denied, 498 U.S. 925 (1990); United States v. Goodman, 797 F.2d
468 (7th Cir. 1986) (witness saw defendant for fifteen to twenty
seconds under good lighting at close range); United States v. Serna,
799 F.2d 842, 852 (2nd Cir. 1986) (defendant within two to three feet
of witness for thirty minutes), cert. denied, 481 U.S. 1013 (1987).

44. Mata v. Sumner, 696 F.2d 1244, 1251–52 (9th Cir.), vacated on other
grounds, 464 U.S. 957 (1983).

45. Valde v. Schmer, 724 F.2d 249 (1st Cir. 1984).

46. Id. at 251.

47. Manson v. Brathwaite, 432 U.S. 98, 115 (1977).

48. Valde, 724 F.2d at 252 (1st Cir. 1984).

49. 432 U.S. 98, at 115.

50. United States v. Jarrad, 754 F.2d 1451, 1455 (9th Cir.), cert. denied,
474 U.S. 830 (1985).

51. United States v. Monsour, 893 F.2d 126, 128 (6th Cir. 1990).

52. Simmons, 390 U.S. at 383–84.

53. Biggers, 409 U.S. 188, 201 (1972).

54. United States v. Rundell, 858 F.2d 425 (8th Cir. 1988).

55. United States v. Marchand, 564 F.2d 983, 996 (2nd Cir. 1977), cert.
denied, 434 U.S. 1015. (1978).

56. The guide can be found on the Web at [Link]

In 2003, the National Institute of Justice republished the guide and
added a multimedia training package. The package contains a slide
presentation, audio and video clips of interviews and lineups, and
 exercises designed to enhance learning and make training sessions
more interactive and visually interesting for law enforcement students.
The 2003 guide can be found on the Web at
[Link] In a DOJ Memo
published on January 6, 2017, the department stated that “research and
practice have both evolved significantly since then.” The memo goes
on to highlight a summary of the “developments in the field of
eyewitness identification.” See the full report:
[Link] (last visited 3/26/2022).

57. See NAS, Identifying the Culprit: Assessing Eyewitness Identification,

[Link]
[Link] (last visited 6/1/2018).

58. The memorandum and report are available at

[Link] (last visited 6/1/2018.

Design Element: ©Ingram Publishing

Page 366

11

Circumstantial Evidence

Dragosh Co/Shutterstock

Page 367

Chapter Outline

Direct Evidence Versus Circumstantial Evidence

Direct Evidence Defined

Circumstantial Evidence Defined

Why Use Circumstantial Evidence?

 Relevance of Circumstantial Evidence

Different Functions of Circumstantial Evidence

Admissibility of Other Crimes, Acts, or Wrongs

Other Crimes to Prove Motive or Intent

Other Crimes to Prove Plan (or Design)

Other Crimes to Prove Lack of Mistake or Accident: The Doctrine of

Chances

Other Crimes or Misconduct to Prove Identity

Means or Capability to Commit a Crime

Consciousness of Guilt

Character of the Defendant

Proving the Defendant’s Good Character

Prosecution’s Proof of Defendant’s Bad Character

Amount of Proof to Show Good or Bad Character

Proof of Prior Sexual Misconduct

Character of Victims

Homicide Victim

Victim in Sex Offense Cases

State of Mind of Homicide Victim When Defendant Claims Self-Defense

or Accident

Character of Witness

The Accused as Witness

Review and Application

Chapter Objectives

This chapter focuses on another broad area of criminal evidence—circumstantial

evidence. After reading this chapter you will be able to:

Distinguish between direct and circumstantial evidence.

State when and how the trial judge determines the relevancy of
circumstantial evidence.

Explain why the law generally prohibits evidence of the defendant’s

character.

Name the principal noncharacter uses of “other crimes” evidence.

Explain how motive and intent differ.

Describe how the prosecution might use “other crimes” evidence.

State how the prosecution may use another act of the defendant to refute a
claim of mistake.

Explain what modus operandi means in the context of the “other acts”
evidence rule.

Give several examples of circumstantial evidence that may be admitted to

prove the accused’s consciousness of guilt.

Explain when the prosecution might prove the defendant’s bad character.

Explain when a victim’s character is at issue.

Describe the laws shielding victims of sex offenses and why lawmakers have
enacted them.

Identify how a witness’s character may be attacked.

Describe the test used to evaluate the admissibility of a defendant’s prior

uncharged felony convictions.
Page 368

Direct Evidence Versus

Circumstantial Evidence
A common misconception is that circumstantial evidence is inferior evidence, but
this is not so. As the federal jury instruction defining direct and circumstantial
evidence states, “The law makes no distinction between the weight or value to be
given to either direct or circumstantial evidence. Nor is a greater degree of
certainty required of circumstantial evidence than of direct evidence.”1 This is the
rule in a majority of jurisdictions. In a minority of states (California and 12 other
states—see Figure 11–1), the law treats circumstantial evidence differently. In
those states, the courts tell jury members that they may not find the defendant
guilty based on circumstantial evidence unless the proved circumstances are (1)
consistent with the theory that the defendant is guilty of the crime and (2) cannot
be reconciled with any other rational conclusion. This instruction recognizes what
is known as the “reasonable alternative hypothesis” instruction, which often
benefits the accused. For example, assume a male defendant’s fingerprints are
found at the scene of a burglary and the police, upon investigating him, discover
in his apartment a credit card in the name of the burglary victim. In such a case,
the evidence is purely circumstantial, and the defendant would be entitled to the
just-described jury instruction in those jurisdictions that distinguish between
direct and circumstantial evidence. In Holland v. United States,2 the Supreme
Court of the United States said that, since there was no difference between direct
and circumstantial evidence, trial courts need not give a cautionary instruction on
circumstantial evidence like that used in California to satisfy the accused’s right
to a fair trial. A proper instruction on reasonable doubt is sufficient. Figure 11–1
shows those states that require a cautionary instruction like California’s in regard
to circumstantial evidence.
 FIGURE 11–1 States that give circumstantial reasonable doubt
instruction.

Page 369

Most courts, including those in jurisdictions that make no distinction between

direct and circumstantial evidence, do continue to define the two categories of
evidence for the jury. The distinction between direct and circumstantial evidence
is often difficult to recognize. But because of the Supreme Court’s decision in the
Holland case, there is no constitutional basis for the reasonable alternative
hypothesis instruction. Consequently, only the noted minority of state
jurisdictions recognize the right of a defendant to such an instruction.

Direct Evidence Defined

Direct evidence is the testimony of a person who asserts or claims to have actual
knowledge of a fact, such as an eyewitness. In a criminal trial, an example of
direct evidence is the facts presented by a witness who saw the accused actually
commit the crime. The jury decides whether to believe the witness’s testimony; if
they believe the witness, then they accept the facts the witness stated. The jury
does not have to draw any inferences from the evidence presented to reach a
conclusion about the defendant’s guilt or innocence with direct evidence. For
example, if, in a murder case, a witness saw the accused shoot the victim, the
witness’s testimony is direct evidence of the shooting and, if believed, is
sufficient to convince the jury of the accused’s guilt. It is important to note that,
in this example, the observations of the witness are direct evidence only of the
shooting and are not direct evidence of the cause of death, as the discussion of
circumstantial evidence that follows will make clear.

FYI

Direct evidence is the product of a person’s sensory perception. A person who

states, “I heard three shots,” is an “ear witness.” A person who testifies, “It
smelled like smoke,” is a “nose witness.” A person who testifies, “I felt his wrist
and got no pulse,” is a “touch witness.” And, of course, a person who says, “I saw
the man enter the bank with a gun,” is an “eye witness.”

Circumstantial Evidence Defined

Circumstantial evidence is an indirect approach to proving the facts in dispute.
Federal law defines it as “proof of a chain of facts and circumstances indicating
the existence of a fact.”3 Sometimes circumstantial evidence is called “indirect
evidence” because certain facts may be inferred to have taken place when other
facts are proved to have happened. The law defines circumstantial evidence as
evidence that tends to establish the facts in dispute by proving the existence of
another set of facts from which an inference or a presumption can be drawn. One
or more inferences can arise from a series of proved facts. Returning to the
hypothetical murder case, if no one saw the accused shoot the victim, the
prosecution would have to prove the accused’s guilt by proving the existence of
other facts and circumstances from which the judge or jury infers beyond a
reasonable doubt that the defendant committed the crime.

Page 370
For example, consider a situation in which a witness overheard a heated argument
between the accused and the victim, then heard a shot, and after that saw the
accused, holding a gun, run from the room in which the victim was found dead.
From these facts, an inference could be drawn that the accused was guilty of the
homicide. It may appear at first glance that these facts are direct evidence, as, in
each instance, the witness heard or saw something. The testimony is direct
evidence about what the witness heard and saw. However, it is only circumstantial
evidence about the fact in issue, whether the accused shot the victim, because the
witness cannot testify that he or she saw the accused shoot the victim. The
witness’s testimony only presents a set of circumstances from which the jury
could, and likely would, infer that the defendant shot the victim and therefore was
guilty.

FYI

The following example was given by a Federal District Court judge to a jury to
explain the difference between direct and circumstantial evidence.

Suppose that, before going to bed one cold winter night, you look out the window
and see snow falling. You may conclude by direct evidence, your having seen the
snow fall, that the snow banks the next morning resulted from a snowfall the
night before. However, if you go to bed after looking out the window and see the
dry pavement in your driveway but wake up the next morning and see banks of
snow there, you may conclude by inference only, that is, by circumstantial
evidence and reasoning, that it snowed the night before. In either event, you are
just as certain that snow fell in the night.

In the case in which the witness actually saw the defendant shoot the victim, most
of the observations of the defendant’s actions would be direct evidence: The
witness saw that the defendant had a gun in his hand, pointed it at the victim, and
pulled the trigger; there was a loud noise and the victim fell to the floor, dead.
Since the witness could not possibly see the bullet leave the gun and enter the
victim’s body, the jury could only conclude that the shot resulted in death based
on the inferences from the observed circumstances.

Circumstantial evidence may also be presented by the accused in an effort to

prove innocence. For example, in our hypothetical murder case, the defendant
might attempt to claim self-defense. He or she might use evidence to show that
the victim had a reputation for violence and, to show that the deceased was the
initial attacker, might claim that the victim was carrying a knife.
Why Use Circumstantial Evidence?
Some people are skeptical of circumstantial evidence because they do not
understand what it is or its significance in the prosecution of cases. Most crimes
are committed without eyewitnesses, particularly homicide and burglary, so the
only means of proving guilt is through the introduction of circumstantial
evidence. Circumstantial evidence can be as convincing as direct evidence in
proving guilt and often may be even more reliable. Law enforcement
professionals must guard against being too skeptical when it comes to
circumstantial evidence. It is often easy to overlook or disregard seemingly
unimportant and unrelated facts that, when taken as a whole, create a high
probability of conviction. Most of the scientific evidence presented by forensic
experts is nothing more than circumstantial evidence, yet its reliability can be
very satisfactory and convincing. A latent fingerprint discovered on a burglarized
safe or on a gun identified as a murder weapon is the strongest kind of proof that
the accused touched those objects. Figure 11–2 shows the latent fingerprint
patterns.

Page 371

FIGURE 11–2 Basic fingerprint patterns.

PR INC./Science Source

On the other hand, witnesses to crimes may have difficulty remembering details,
such as the time that events occurred or an accurate description of people or
objects they saw. In fact, many courts instruct juries to look carefully at
eyewitness identification testimony because it is so often inaccurate. Those courts
tell the jury to take into account all the factors that weigh upon
mistakeneyewitness identifications, such as the opportunity for the witness to
observe, the stress the witness was under at the time of the events, any cross-
racial or ethnic differences between the witness and the accused, and whether
there was previous contact between them. See the California jury instruction
regarding eyewitness identification set forth in Chapter 10, page 353, for an
example of such a cautionary instruction.

ON THE JOB

In order to document the accuracy and propriety of an eyewitness’s identification

of a suspect, the law enforcement officer must make a complete and accurate
record of all actions and statements surrounding the witness’s identification. For
example, if the officer seeks to have the witness select a photograph of a suspect,
a photographic array should be arranged in which the prime suspect’s photograph
is presented along with other photographs of similar-looking suspects. Even more
important, however, is that an oral or video record should be made of everything.
The array should be photocopied and all instructions recorded. It is important to
remember that this identification is not meant to stand alone but is a piece of the
total investigation by the officer.

The law recognizes the validity of circumstantial evidence because human

experience teaches that, when a given set of circumstances repeatedly causes a
result, the same result is likely to recur each time those same circumstances recur.
In other words, the inferences the fact-finder draws from the evidence presented
will be consistent with human experience and common sense. Thus, human
experience and common sense have shown that, when a person overhears a
heated argument between two people, hears a shot, sees an individual running
from the room with a gun in his or her hand, and finds a deceased victim in the
room, then the individual seen fleeing is likely the killer.

Relevance of Circumstantial Evidence

Whether direct or circumstantial evidence is to be introduced, the rules of
admissibility are the same. First, the evidence must meet the requirement of
relevance. In the words of FRE 401, the evidence must have “any tendency to
make a fact more or less probable than it would be without the evidence.”
Second, the evidence must be presented through a witness who has personal
knowledge about the subject of his or her testimony. In the case of direct
evidence, one can usually readily recognize the connection. However, the
relevance of circumstantial evidence is often hidden and may have to be
explained by the attorney trying to introduce it before the judge will admit the
evidence. For example, the appearance of an accused person’s clothing
immediately after the crime has been committed may not initially seem relevant.
Nevertheless, if the charge against the accused is murder or aggravated assault,
the fact that the accused’s clothing suggested he or she had been in a struggle
could be material in proving guilt. Another example is a love letter from the
accused to the spouse of the deceased, offered to prove that the accused had the
motive to kill his lover’s husband—in order to have his lover for himself.

Page 372

If either side tries to keep testimony or tangible evidence out of court, that party
will object to the evidence. He or she may make the objection at trial when the
opponent first tries to introduce the evidence, or in a motion, sometimes made
pretrial. A motion to exclude or admit evidence is a motion in limine. After the
attorneys make written or oral arguments, the judge then rules on the
admissibility of the evidence. Sometimes a judge has a witness testify before
making a ruling on the evidence’s admissibility. Keep in mind, as discussed in
Chapter 3, that, just because evidence may be relevant, it may still be
inadmissible if the judge determines it might be unfairly prejudicial, or if it would
be confusing or a waste of time. FRE 403 has a balancing test that requires the
judge to exclude relevant evidence if its “probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, waste of time, or
needlessly presenting cumulative evidence.” The fact that a witness was addicted
to drugs or alcohol at one time in his or her life but was not claimed to have been
under the influence at the time of the events involved in the trial is an example of
a relevant fact that a judge would probably exclude under the balancing test.

The relevance of circumstantial evidence is based primarily on logic,

reasonableness, good sense, and good judgment. If circumstantial evidence tends
to explain in a reasonable manner what happened and aids in proving the truth of
issues in dispute, it is considered relevant.

A lawyer may offer a single fact in evidence that seems irrelevant. However,
other facts, proven later, may make the first fact relevant to the issues in dispute.
For example, evidence that an accused is an expert shot with a rifle may not have
any particular significance, even in a homicide case, but, if it is proved that the
homicide victim was killed with a rifle shot from a great distance, the fact that the
accused was able to commit such an act could create an inference of guilt. On the
other hand, if it was proved that the accused was completely unfamiliar with
firearms, that fact would support an inference that he or she could not have been
the shooter.

ON THE JOB

A law enforcement professional who is testifying when defense counsel objects

might think it would be helpful to the prosecution if he or she were to blurt out
the information that the prosecution is seeking. Such behavior is inappropriate
and unprofessional. If the judge decides the jury should not have heard the
information, the judge might have to declare a mistrial. In that case, the attempt to
help the prosecution could cause the unnecessary expense of a retrial or even
prevent the case from being tried at all. The witness should pause and wait for the
judge’s ruling on the objection before making any response.

Page 373

Different Functions of Circumstantial Evidence

Circumstantial evidence is used in many ways in criminal prosecutions. In many
cases, the entire evidence against the accused consists only of circumstantial
evidence because no eyewitnesses exist to present direct evidence. For example,
if an accused is on trial for burglary, all of the evidence presented by the
prosecution might be nothing more than a series of events from which the jury
could draw an inference of guilt. The first evidence might be from the officer who
had arrested the accused during the night near the store that had been burglarized
and who had found the accused in possession of articles known to have been
taken during the burglary of the store. This testimony does not directly place the
accused in the store or put the accused in the position of actually having
burglarized the store. However, these events, or facts, create a strong suspicion of
the accused’s guilt. Additional testimony shows that latent fingerprints developed
in the store were identified as those of the accused. With this additional bit of
evidence, the case against the accused becomes stronger. Finally, a criminalist lab
technician testifies to finding a small piece of glass in the pant cuff of the accused
that fit in place with those taken from a broken window of the burglarized store.
None of these facts, individually or collectively, directly prove that the accused is
the burglar, yet, as a whole, they are as strong in establishing guilt beyond a
reasonable doubt as if a witness had testified, “Yes, I saw the accused break into
the store and put the jewelry in his pocket and leave.”

In fact, the jury may consider this series of circumstances to be more convincing
than the direct evidence of a witness who testified to seeing the accused
burglarize the store. The jury may believe the witness unreliable or mistaken, but
a strong inference of guilt can be drawn from the circumstantial evidence. Thus,
the mere fact that the only evidence available is circumstantial does not mean that
it cannot establish a strong case against the accused and, in fact, lead to a jury
verdict of guilty beyond a reasonable doubt.

In a case in which a witness testified, “Yes, I saw the accused break into the store,
put the jewelry in his pocket, and leave,” circumstantial evidence of latent
fingerprints developed inside the store and glass fragments in the pant cuff of the
accused would be used to corroborate the direct evidence presented by the
witness.

One of the most frequent uses of circumstantial evidence is to connect the

accused with the crime, that is, to identify the accused as the one who committed
the act. To establish identity, the prosecution may introduce evidence that the
accused has committed other crimes with the same modus operandi or that he or
she had the ability and means with which to commit the crime in question. The
accused’s previous attacks on the victim are circumstantial evidence that may be
introduced to overcome an allegation that a homicide was committed in self-
defense or by accident, or to prove premeditation. A defendant, to establish
innocence, may also present circumstantial evidence. Some of the more
prominent uses of circumstantial evidence in criminal cases are discussed in the
following sections.
Admissibility of Other Crimes,
Acts, or Wrongs
Most people are likely to agree that a person who has previously committed
other acts of misconduct or crimes is more likely to be guilty of a crime,
when accused, than a person who has not previously committed a crime.
Therefore, revealing to the jury the other acts of misconduct and crimes
committed by a defendant in a criminal trial can create a strong suspicion of
guilt. However, early in the development of the common law in England,
the courts recognized that evidence of uncharged misconduct has a
tremendous potential to prejudice the jury, leading it to conclude that the
accused is a person of bad character. The jury might then convict the
accused based on that opinion without considering the evidence of the
specific crime charged. For this reason, the common law developed a rule
that, normally, evidence of past acts of misconduct and crimes by the
defendant, which were not a part of the charge for which he or she was
presently being tried, could not be introduced during the trial.

Page 374

FRE 404(a) typifies the modern character evidence rule generally

prohibiting the use of character evidence: “Evidence of a person’s character
or character trait is not admissible to prove that on a particular occasion the
person acted in accordance with the character or trait.” The mere fact that
the accused has committed other acts of misconduct or crimes does not
necessarily mean the accused is guilty of the new charge. It has been held
that in each case, a defendant is entitled to go to trial with a clean slate and
is to be tried on the facts of the case at hand and not on a past record. The
evidence of other crimes introduced against the defendant may so prejudice
the jury that the defendant will not receive a fair trial. The jury may be
inclined to assume automatically that a defendant is guilty of the crime with
which he or she is presently charged because of the uncharged acts. In
short, evidence of character is often irrelevant and, even when relevant, is
likely to be more prejudicial than probative.
There are times, however, when evidence of other crimes, acts, or wrongs
committed by the accused may be introduced during a criminal trial if they
are pertinent to certain trial issues other than the accused’s bad character
and if the judge believes the evidence is particularly necessary to assist the
jury in arriving at the truth. Other crimes or misconduct of the accused can
be strong circumstantial evidence of guilt when offered on such issues as, in
the language of FRE 404(b), “motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake, or lack of accident.”

This rule lists specific categories of noncharacter use of other misconduct

evidence, but the categories are not exclusive or exhaustive. This evidence,
sometimes called “prior bad acts” evidence, need not have occurred prior to
the charged crime. The other misconduct may have been committed prior
to, at the same time as, or after the act for which the person is charged. It
just must be relevant to one of the categories of noncharacter use.
Sometimes this evidence is referred to as “similar acts” evidence. However,
the other bad acts do not always have to be similar, as long as they are
relevant. For example, consider a defendant on trial for car theft. Evidence
shows that he stole the car to use as a getaway vehicle after setting fire to
his failing business in order to collect insurance. Evidence of the uncharged
arson would be admissible to show motive for the car theft even though it is
entirely dissimilar to the charged act. Finally, evidence of other crimes may
fit into more than one category of noncharacter use. In the car theft
example, the defendant’s acts of arson and theft are also part of a common
plan or design; the plan was to steal the car to carry out the arson.

MYTH FACT
Uncharged misconduct evidence is Uncharged misconduct
admissible against an accused only if the evidence is admissible if it is
uncharged act is similar or substantially relevant, whether similar to the
similar to the charged act. charged act or not.

Page 375
Other Crimes to Prove Motive or Intent
Other acts of misconduct or crimes frequently become the reason or motive
for repeating the same act or crime, or they may be an indication that the
accused intended a particular act. Although people often use the terms
“intent” and “motive” interchangeably, legally they are different. Motive
can be defined as “that which leads or tempts the mind to indulge in a
criminal act,” and it is something that may be resorted to as a legitimate
help in arriving at the ultimate act in question. * * * ”4

A motive is that which moves a person to act or explains the reason a person
acted. For example, evidence that a homicide victim witnessed the accused
commit a bank robbery would be admissible evidence of a motive for the
homicide. The motive in this case is the desire of the accused to silence the
victim, so that he or she could not testify against the accused. Although the
law does not require evidence of motive in any case, motive is always
relevant because the accused’s conduct, identity, or intent may be inferred
from the motive.

For another example of how motive can be inferred from a set of

circumstances, consider the case of a convict who escapes from prison,
steals a car, robs a convenience store, and then speeds away down a
highway. A patrol officer spots the speeding vehicle and pulls it over for a
traffic violation. As the officer approaches the stopped vehicle, the convict
leans over, pulls a gun from between the seats, and shoots the officer. At the
trial for the killing of the patrol officer, the prosecution could use as
evidence the uncharged crimes of escape, auto theft, and robbery to
establish the motive of the killing. The uncharged misconduct evidence
would clearly be admissible to prove that the motive for the shooting was
the desire not to be identified and caught during the getaway.

Intent, on the other hand, is a state of mind; it expresses mental action that
is usually coupled with an outward physical act to cause a particular result.
Therefore, a crime may be divided into two component parts: the mental
state, or mens rea, and the physical action, or actus reus. Intent is a
necessary element of most crimes, even though only a general intent to take
the physical action is required. Being a state of mind, intent is not easily
proved and can only be proved by circumstantial evidence. Since we cannot
look into the mind of an accused, the jury must infer intent from the
evidence of what the accused said and did.

An example of the introduction of other bad acts to prove mens rea

occurred in Huddleston v. United States,5 in which the defendant was
charged with one count of selling stolen goods shipped across state lines
and one count of possessing stolen property. The defendant was arrested
and charged after selling Memorex videocassette tapes stolen from a
shipment. The government charged that the defendant possessed and sold
the tapes, knowing that they were stolen. The defendant admitted
possessing and selling the tapes but denied knowing they were stolen. The
facts of the case are as follows: (a) More than 32,000 blank Memorex
videocassette tapes were stolen from the Overnight Express yard in South
Holland, Illinois. (b) Two days later, the defendant contacted the manager
of a store in Ypsilanti, Michigan, seeking her assistance in selling a large
number of blank Memorex videotapes. After the defendant assured the
manager that the tapes were not stolen, she agreed to help sell the tapes. (c)
They sold 5,000 tapes and delivered them to various purchasers.

Page 376

At trial, two instances of previous uncharged misconduct were introduced

to prove that the defendant was aware that the tapes were stolen. First, the
owner of a record store testified that the defendant had offered to sell him
new 120 black-and-white televisions for $28 apiece. In the second instance,
an undercover Federal Bureau of Investigation (FBI) agent, posing as a
buyer for an appliance store, testified that the defendant offered to sell him
a large quantity of Amana appliances. The defendant testified that a person
named Leroy Wesby had provided all the videotapes, the televisions, and
the appliances and that Wesby had told him that all of the merchandise was
legitimately obtained. The United States Supreme Court held that, if the
jury could reasonably conclude that the televisions and appliances were
stolen, then this evidence could be used to prove that the defendant knew
that the videotapes were also stolen because all three items had come from
the same source. Thus, the previous acts of uncharged misconduct were
admissible to help prove that the defendant had the required intent to
possess and sell stolen goods.

Another common example in which misconduct evidence is used to prove

intent is in drug cases. Most drug cases involve a charge of possession of
illegal substances or possession with intent to sell. As in the Huddleston
case, when a person accused of possessing drugs claims that he or she did
not know the substance possessed was a drug or that it was illegal to
possess the substance, evidence of prior criminal possession of drugs can be
used to rebut the defendant’s claim.

Other Crimes to Prove Plan (or Design)

Evidence of the commission of acts similar to the alleged crime may be
admissible to show plan or design. Prior acts that are evidence of a common
plan or design are not used to prove the intent or the mental element of a
crime, but rather to prove that the defendant engaged in the conduct for
which he or she is charged. An example is the California case People v.
Ewoldt.6 The defendant was charged with four counts of committing lewd
acts upon a child and one count of annoying or molesting a child. The
victim was the defendant’s stepdaughter, Jennifer. At trial, the prosecution
tried to introduce evidence that the defendant had committed prior
uncharged lewd acts upon Jennifer, as well as evidence that the defendant
had committed prior uncharged lewd acts upon the victim’s older sister,
Natalie. The California Supreme Court held that both instances of
uncharged misconduct by the defendant were admissible. The court
explained that “to establish the existence of a common design or plan, the
common features must indicate the existence of a plan rather than a series
of similar spontaneous acts, but the plan thus revealed need not be
distinctive or unusual.” The court found common features between the
molestation of both girls. Both of the victims were the defendant’s
stepdaughters, were living with the defendant, and were similar in age when
the acts occurred.

Page 377

Application Case
One of the most bizarre cases in which a common plan or design became an
issue was People v. Lisenba,7 in which the defendant was charged with the
murder of his wife. Prior acts of misconduct relating to the murder of a
former wife were admitted to prove that the charged murder was part of a
common plan or scheme. The defendant had married his second wife and
immediately thereafter took out an insurance policy on her life, with a
double-indemnity clause for accidental death. A short time later, the
defendant conspired with a friend to help him kill his wife and make the
death appear as an accident in order to collect on the double-indemnity
clause of the insurance policy. The defendant first decided to poison his
wife by obtaining two rattlesnakes. With the help of his friend, the
defendant tied his wife to the kitchen table and placed her feet in the box of
rattlesnakes. The defendant and his friend then left the house. Upon their
return, the defendant found that the venom had not had any serious effect on
his wife. He then decided to drown her in the bathtub and then place the
body in a backyard fishpond in a manner to make it appear that she had
“accidentally” fallen into the pond. After placing the wife’s body face down
in the pond, the defendant then went out to dinner with another friend and
his wife. When he returned home, the defendant made a pretense of
searching for his wife. After searching the yard, the defendant stated that
his wife had apparently fallen into the fishpond and drowned. An autopsy
was performed, and the drowning was confirmed. An investigation at that
time failed to reveal the circumstances of his wife’s death.

The defendant meanwhile tried to collect on the insurance policy, but the
insurance company refused payment on the ground that the accidental death
was suspicious. This suspicion was based on the fact that, three years
previously, the defendant had married a woman in Colorado and had
immediately taken out an insurance policy on her life with a double-
indemnity clause. Thereafter, while on an automobile ride, the defendant
and his first wife were in an accident. The first wife did not die in the auto
accident, but drowned in the bathtub under suspicious circumstances. The
prosecution brought out the facts of this alleged accidental death during the
trial for the murder of his second wife as uncharged misconduct evidence.
The evidence of the prior acts of misconduct by the defendant concerning
his first wife, including the existence of the double-indemnity clause
insurance policy, her attempted murder, the subsequent cover-up to make it
look like an accident, and the mysterious drowning, was admitted in the
trial for murder of his second wife in order to prove a common scheme or
plan to kill his wives for the insurance money.

Page 378

Other Crimes to Prove Lack of Mistake or

Accident: The Doctrine of Chances
There are some instances when the circumstances of the case or the
defendant’s claim requires the prosecution to disprove the possibility that
no criminal conduct has taken place or that the crime occurred as the result
of an accident or a mistake. For example, in a child abuse case, the parents
might claim that the child received his or her injuries by accidentally falling
down the stairs; thus, there was no criminal act committed upon the child.
In a case like this, the prosecution could introduce uncharged misconduct
evidence to prove a crime had occurred rather than an accident—i.e., the
actus reus of a crime. The prosecution might introduce several documented
previous instances in which the child suffered serious unexplained injuries
in an attempt to prove that the injuries now at issue were not the result of an
accident. This use of such evidence has been called the doctrine of chances
and may be explained as an attempt to convince the jury that the charged
crime is not an isolated event due to chance. According to one
commentator, “The doctrine of chances rests on the objective improbability
of coincidences.”8 If the same situation happens time and time again, then
these “accidents” can no longer be considered coincidental.

An early example demonstrating the use of the doctrine of chances is the

English case often referred to as the “Brides of the Bath,” R. v. Smith.9 The
defendant was on trial for the drowning death of his first “wife,” who was
found dead in a bathtub shortly after the “marriage” and after she signed an
agreement transferring her property to the accused upon her death. The
defendant contended that the wife had died of an epileptic seizure and that
her drowning was simply an accident. However, the prosecution introduced
evidence that two subsequent “wives” had died in their baths under similar
suspicious circumstances shortly after their “weddings” and after signing
their property over to the accused. Thus, all three “wives” were found dead
in exactly the same manner while the defendant was alone with them in
their homes. At the time of all three of these “marriages,” the defendant was
actually married to another woman, who remained alive through it all. The
defendant was convicted for the murder of his first “wife” and, on appeal,
the British court held that the evidence of the subsequent two drownings
was admissible to refute the possibility of coincidence. The court said that
the uncharged acts went to prove that the charged drowning was a crime
rather than an accident and allowed the conviction to stand. The simple
reasoning behind the ruling of admissibility was that either Smith was the
unluckiest man alive or he had drowned his first “wife.”

Application Case

A more recent example of the doctrine of chances use of other misconduct

evidence is Estelle v. Mcguire,10 in which the defendant was charged with
the murder of his infant daughter. The defendant claimed that the daughter
had fallen off the couch and subsequently died of the injuries she sustained.
However, the prosecution introduced evidence that the child had 17
contusions on her chest, 29 contusions on her abdominal area, a split liver, a
split pancreas, a lacerated large intestine, and damage to her heart and one
of her lungs. There was also evidence of rectal tearing and a partially healed
rib fracture, both of which were the result of previous injuries. The
prosecution claimed that the child suffered from battered child syndrome,
which tended to prove that the child had not suffered the injuries
accidentally and that the final infliction of injury that took her life did not
result from her falling off the couch.

Page 379

The use of other misconduct evidence to refute the possibility of accident or

mistake may also occur when the defendant, charged with some particular
criminal activity, denies it occurred and claims innocence. For example,
assume a man is accused of sexual molestation of one child and he admits
that he was in the child’s company but denies any sexual contact. The
prosecution could introduce evidence that the accused molested another
child on a different occasion to refute the defendant’s claim of innocent
association. In such a case, the evidence also could be said to be admissible
because the evidence of the uncharged event tends to corroborate the
evidence of the crime charged.

Other Crimes or Misconduct to Prove Identity

During a criminal case, not only must the fact that a crime has been
committed be proven but also it must be established that the defendant was
the one who committed the act, unless he or she admits committing the act
and claims some justification or legal excuse, such as self-defense. Proving
that the defendant is the one who committed the crime for which he or she
is on trial is not always easily accomplished, particularly if the defendant
alleges mistaken identity or claims an alibi defense. Prior crimes known to
have been committed by the defendant may sometimes be introduced into
evidence in an effort to prove that the defendant committed the crime for
which he or she is on trial. Motive, existence of a plan or pattern of conduct
that implies a plan, absence of accident, and opportunity are theories often
used to prove the identity of a perpetrator. Identity is particularly provable
by evidence that the accused committed another, similar crime.

However, mere evidence that there are similarities between a prior crime
committed by the accused and the charged crime at issue is often not
enough to prove identity. This is so because many crimes of the same nature
committed by different individuals may have marks of similarity. For
example, burglary by entry through a ground floor window is a common
method and, hence, evidence of such will usually be inadmissible. Most
courts have gone so far as to hold that, to be admissible, evidence
suggesting similarities in the manners in which the prior crimes and the
currently charged crime were committed must be so unusual and distinctive
as to be like a signature. A distinctive pattern of committing crimes is
referred to as the modus operandi of the perpetrator. For example, a bank
robber who always wears a Mickey Mouse mask and gray overalls is
distinguished by these characteristics, which are part of his modus
operandi.
Means or Capability to Commit a
Crime
Circumstantial evidence is often introduced to prove that the accused had
the means with which to commit a particular crime or that he or she could
commit it. Examples include an employee who had the keys to a locked
drawer from which valuables were stolen and an employee with a computer
password to confidential files when secrets contained within the computer
were stolen. Perhaps the most illustrative example is in the trial of Scott
Peterson. There, the prosecution maintained that Peterson had both the
means and the capability to murder his wife, Laci, and their unborn son,
Conner. The first piece of circumstantial evidence was the fact that Peterson
lied about his affair with Amber Frey—he did not tell the police about it,
and he even lied about that on national television. Even the fact of his affair
was a piece of evidence that could be used by the jury to infer a motive to
kill his wife. Second was the evidence that Peterson told Frey some weeks
before Laci’s disappearance that he had “lost” his wife. Finally, perhaps,
was Peterson’s alibi—that he had gone fishing the day of Laci’s
disappearance—placing him in the area of San Francisco Bay, where Laci’s
and Conner’s bodies washed up almost four months later. Each of these
pieces of evidence in the totality of the circumstances would be sufficient to
prove that Peterson had both the means and the capability of committing the
double homicide. In fact, Peterson was convicted on this evidence.
Page 380

Consciousness of Guilt
Although individuals may react differently from time to time, people
generally follow a standard pattern of behavior. Frequently, a person who
has committed a crime will deviate from his or her usual pattern of conduct.
When this occurs, proof of uncustomary acts, statements, or appearance
may be introduced to show consciousness of guilt. It has been held that any
act from which the inference of consciousness of guilt can be drawn is
admissible.

Application Case

In a famous trial for murder, Daniel Webster headed the prosecution of John
Francis Knapp, who was charged with the murder of Joseph White. Webster
claimed that Knapp had aided and abetted a man named Crowninshield,
who actually struck the fatal blows. It was therefore crucial to the
prosecution to show Crowninshield’s guilt—although Crowninshield
himself had committed suicide before the trial. In his closing argument,
Daniel Webster argued to the jury that the suicide was a confession of guilt:
“Meantime the guilty soul—cannot keep its own secret. It is false to itself;
or rather it feels an irresistible impulse of conscience to be true to itself. It
labors under its guilty possession, and knows not what to do with it. … It
must be confessed, it will be confessed; there is no refuge from confession
but suicide, and suicide is confession.”11

Evidence of guilt can be manifested in several forms of observable

behavior. If an accused person were seen fleeing from the scene of a crime,
the prosecution could introduce this fact in evidence as part of the proof of
guilt because the usual tendency for a person who has committed a crime is
to flee from the scene. The fact that the defendant was in a highly emotional
state immediately after a murder that he has been accused of committing
may be introduced to show consciousness of guilt. The fact that the accused
attempted to evade arrest and to escape can also be introduced. Probably the
most famous example of this type of evidence is the low-speed chase of
O.J. Simpson in his white Ford Bronco in connection with his first criminal
trial. Other acts that may serve as evidence of consiousness of guilt include
those in which the accused denies his or her identity to the police or starts
using a fictitious name immediately after a crime has been committed. The
failure to appear for trial, an attempt to conceal evidence, the refusal to
participate in a lineup, the refusal to furnish handwriting examples, and an
attempt to bribe witnesses are all circumstances that would indicate that the
accused is guilty of a crime.
Page 381

Character of the Defendant

If the defendant in a criminal trial has a reputation of bad character, this
reputation may be some indication of guilt because one usually acts in
accordance with one’s reputation. The reputation of the defendant may
therefore be pertinent to the issue. Nevertheless, the universal rule,
exemplified by FRE 404(a), generally prohibits the proof of character at
trial. Therefore, the prosecution is not permitted to introduce evidence that
the defendant is a person of bad character in order to prove guilt. Two
reasons have been advanced for this prohibition. First, there is no
presumption that the defendant in a criminal trial is a person of good
character and much trial time is saved by not requiring the prosecution to
show the bad character of the accused. Second, and probably of greater
importance, if evidence is presented that the defendant has a reputation for
being bad, such evidence may subject him or her to undue prejudice. There
is always a danger that the jury may convict the defendant on reputation
rather than on the facts of the case.

FYI

In 1995, an amendment to the FRE, adding Rules 413, 414, and 415, went
into effect. These rules effectively established an exception to the rule that
prohibits evidence of a trait of character to be used to prove that an accused
conducted himself or herself in accordance with that trait of character and
thereby likely committed the crime charged. The rules allow evidence of
“similar crimes” to be admitted in sexual assault and child molestation
cases. In other words, evidence of sexual misconduct or child molestation
committed by a person accused of similar sexual misconduct or child
molestation is admissible to prove that such a person has a propensity to
commit such acts. Congress adopted these rules to aid law enforcement and
the courts in convicting sexual offenders. These rules permit evidence of
specific bad acts, but not evidence in the form of reputation and opinion.
However, under the universal rule, the defendant may present evidence of
good character in an attempt to prove innocence [see FRE 404(a)(2)(A)].
The law permits the accused to try to show that he or she is not the kind of
person who would commit the crime of which he or she has been accused.
Of course, this defendant’s good character rule requires that the evidence of
good character must have some bearing upon the crime charged; that is, it
must show traits in opposition to the type of crime that the defendant is
accused of having committed. For example, if the defendant were charged
with robbery, evidence that the defendant has a reputation for being honest
would be admissible, as it would be in opposition to the charge. If, however,
the defendant were charged with child molestation, a reputation for being an
honest person would not be relevant and would therefore not be admissible.
A defendant charged with aggravated assault might show evidence that he
or she has a reputation for being a quiet and peaceful person in an attempt
to prove that the assault was done in self-defense.

Page 382

Proving the Defendant’s Good Character

A defendant shows his or her good character through witnesses, referred to
as “character witnesses,” who are in a position to know the defendant or the
defendant’s reputation. Under the modern rule, typified by FRE 405(a), a
character witness may testify only in the form of opinion or reputation.
Character, opinion, and reputation are not the same. Generally speaking,
character is a description of a person’s attributes, traits, or abilities. Opinion
as to character is the witness’s personal judgment based on direct
observation and personal knowledge of an accused’s specific traits of
character. Someone who knows the accused long enough and well enough
to form an opinion may give opinion evidence. The longer the witness has
known the accused, the more weight the opinion carries.

Reputation is the consensus of what other people in the community say

about the accused’s character. To prove the reputation of a person, a witness
must be in a position to know what others say about that person. The
character witness must know what others say about the defendant in a
specific community, such as where the defendant resides, works, or
socializes. It must be the general reputation reflected among a certain class
of persons. For example, a gambler may have a good reputation among his
associates for being honest because he pays all of his gambling debts, and
he may even have the reputation of being a generous person within the
same crowd. However, in the community in which he resides, he may have
a bad reputation because he is considered an unsavory person. For any
weight to be given to the testimony of a character witness, the witness
should have recent knowledge of the defendant’s reputation; that is, the
knowledge should be as of, or about, the time that the crime was
committed. If the knowledge of the accused’s reputation is too remote in
time, it may be of little consequence to the jury.

FYI

When presenting the testimony of a character witness, the examining

attorney is permitted to elicit the witness’s testimony only in the form of
opinion or reputation. Therefore, after laying the foundation for the
witness’s knowledge of the accused, the examining attorney is permitted to
ask only questions in the form of “Do you know?” with respect to opinion
and “Have you heard?” with respect to reputation.

Prosecution’s Proof of Defendant’s Bad Character

Once the defendant has attempted to prove good character, the prosecution
may present evidence to show that the defendant is of bad character. The
defendant’s introduction of that evidence places character in issue, and the
prosecution is permitted to meet this issue by impeachment, refuting the
defendant’s contention of being good by proving the defendant is of bad
character. This may be accomplished by impeaching the defendant’s
character witness or by the prosecution calling its own witnesses to attest to
the defendant’s bad character.

Impeachment of a defendant’s character witness by the prosecution may

follow any one of the traditional impeachment methods. In addition,
however, the prosecution may try to devalue the character witness’s
testimony by asking the witness about specific acts of misconduct in which
the defendant has engaged. Remember that the defendant’s character
witness may not testify to specific good deeds to prove good character on
direct examination. Nonetheless, the prosecution is permitted to test the
character witness’s knowledge of the defendant or his or her reputation by
asking whether the witness has heard of specific acts of misconduct by the
defendant on cross-examination. All that the courts require of the
prosecution is a good faith basis in fact that the accused has committed the
misdeed. That is, if the prosecution is in possession of information that the
defendant has committed acts of misconduct, or if the prosecution knows
statements have been made that the defendant committed acts of
misconduct, then the inquiry of the witness may be made. The prosecution
may not just make up a rumor in an effort to test the character witness. In
fact, when the prosecution asks questions about acts of misconduct by the
defendant, the trial judge may require proof that there is a good faith basis
for the question and require the prosecution to identify the source of the
information along with evidence of the source’s reliability. This inquiry by
the trial judge is not made in the presence of the jury.

Page 383

FYI

When the defendant puts character in issue by introducing evidence of good

character, it is referred to as “opening Pandora’s box,” as the witnesses may
be open to damaging cross-examination.

A classic example in the books is a character witness in a trial for murder.

She testified that she grew up with the defendant, that she knew his
reputation for peace and quiet, and that it was good. On cross-examination,
she was asked if she had heard that the defendant had shot anybody and, if
so, how many people. She answered, “Three or four,” and gave the names
of two but could not recall the names of the others. She still insisted,
however, that he was of “good character.” The jury seems to have valued
her information more highly than her judgment, and, on appeal from
conviction, the cross-examination was held proper.12
Some people believe that permitting the prosecution to indulge in a
wholesale background inquiry about the prior misconduct of a defendant is
highly prejudicial in all instances and should not be allowed. On the other
hand, it must be remembered that the defendant does not have to place his
or her character in issue by attempting to prove good character, particularly
if the defendant knows, better than anyone else, that the good character
does not exist. The defendant should be aware that the prosecution cannot
show bad character or prior acts of misconduct until the defendant opens
the issue. Therefore, the defendant raises the issue at his or her own risk. It
is only fair that the prosecution should be entitled to overcome a
defendant’s false allegation that he or she is of good character. It is
considered in the best interests of justice to permit some inquiry to be made
of the defendant’s true character. Besides being asked whether the witness
has ever known or heard of acts of misconduct or prior crimes, the witness
may be asked whether he or she knew or heard of the defendant’s prior
convictions. The prosecution, however, may not independently introduce
proof of those prior convictions.

When the defendant elects to put character in issue, character witnesses will
testify and may be cross-examined. In all likelihood, the jury will hear
testimony of both good character and bad character. It then becomes a
matter of whose witnesses, or which testimony, the jury believes.

Amount of Proof to Show Good or Bad Character

No set number of witnesses is needed to prove either good or bad character.
Much is dependent upon the weight given to the testimony of the character
witnesses. In any event, the trial judge will allow a reasonable number of
witnesses on both sides, so that the jury may make some determination. The
judge will normally limit the number of witnesses after a certain point;
otherwise, the presentation of character witnesses could go on indefinitely.

Page 384

Proof of Prior Sexual Misconduct

In 1995, the Federal Rules of Evidence were amended to address the
admissibility of evidence of a defendant’s prior sexual assault or child
molestation crimes in cases involving sexual assault or child molestation.
Rules 413, 414, and 415 create exceptions to the general rule that evidence
of past crimes may not be used “to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the
character” [FRE 404(b)(1)]. FRE 413 specifically allows the prosecution in
sexual assault cases to introduce evidence regarding other uncharged sexual
misconduct by the accused. Evidence of sexual assault would therefore be
automatically admissible in the prosecution’s case-in-chief. Similarly, FRE
414 permits the introduction of uncharged incidents of child molestation in
a case in which the accused is charged with an offense of child molestation.
Such incidents may include any prior acts of molestation against the victim,
as well as prior incidents involving other children. Rule 415 makes such
evidence also admissible in civil damages cases brought by the victims of
either sexual assault or child molestation.

Application Case

In United States v. McHorse,13 McHorse was convicted of four counts of

aggravated sexual assault upon three victims, all of whom were under 12
years of age at the time of the crimes. At trial, testimony relating to similar
acts was admitted under both FRE 404 and FRE 414. First, the defendant
called his son, Justin, to testify on his behalf that he knew his father
“couldn’t” do anything bad to anybody, “would not do anything like that,”
and “was a great father and provided a very good home.” Based on this
testimony, the court ruled the son had testified as a character witness for the
defendant, thus opening the door under FRE 404(a) to rebuttal by specific
instances of conduct. The government was entitled to demonstrate that
Justin was not fully informed as to his father’s character by inquiring into
Justin’s knowledge of two discrete specific instances of conduct allegedly
involving the defendant’s daughter and half-sister. The prosecutor then
asked the son if he was “aware of the fact that your own sister … [h]as said
that he sexually abused her from the time that she was a small child” and if
he was “aware of the fact that [the defendant’s half-sister] has said that your
father sexually abused her from the time that she was a small child to the
time she was 18.” Justin replied he was not aware of the daughter’s
allegations but was aware of the half-sister’s allegations. In addition, under
FRE 414, the court permitted testimony regarding the defendant’s alleged
conduct toward Jane Does D and E, which closely resembled that conduct
upon which the trial was based.

This set of rules operates as a series of exceptions to the general rule

prohibiting evidence of a trait of character to prove conduct by an accused
in conformity with that trait. Congress enacted the new rules in response to
the increasing public outcry against sexual offenders who continue to
commit the same crimes. These rules are particularly helpful to rebut a
claim of consent. In fact, “without question, Rules 412, 413, and 414,
applied in a single case, make it easier for the government to prosecute sex
offense cases.”14

Page 385

Application Case

In United States v. Withorn15 the trial court admitted R.M.’s testimony that
Withorn sexually assaulted her. The incident R.M. described was
substantially similar to the current victim’s experience with Withorn. The
victims were approximately the same age at the time of the rapes, and both
assaults involved force and occurred after Withorn had isolated the victims
from others. Both victims also testified that immediately after the incident
Withorn threatened to harm them if they told anyone what had occurred,
and in each case Withorn’s defense was that the victim had consented to the
sexual activity. Because of these parallels, the appellate court held that
R.M.’s testimony was probative evidence showing Withorn’s propensity
toward the type of behavior alleged to have been committed against the
victim.
Character of Victims
Homicide Victim
When one person kills another, the character of the deceased victim is
generally unimportant. The crime of homicide still stands, whether the
deceased victim was of good or bad character. In these circumstances, the
law does not require that the prosecution present any evidence concerning
the character of the deceased. However, when the character of a victim does
become an issue at trial, the traditional rule, as stated in FRE 404(a)(2)(B)
and (C), allows for the introduction of a pertinent trait of character of the
alleged victim of the crime offered by an accused, or by the prosecution to
rebut the same, or evidence of a character trait of peacefulness of the
alleged victim offered by the prosecution in a homicide case to rebut
evidence that the alleged victim was the first aggressor.

The character of the victim usually becomes an issue in homicide and

assault cases. For example, in a homicide case, the defendant may admit to
killing the victim but claim that the homicide was the result of self-defense.
The defendant might try to prove that the victim was violent and aggressive,
both in fact and in reputation. The defense could call character witnesses to
prove the aggressive nature of the victim through both opinion and
reputation testimony.

When the defendant introduces this kind of evidence, the prosecution may
also present witnesses to prove the opposite, that the victim was reputed to
be meek and mild. Rule 404(a)(2)(B)(ii) provides that, when an accused
attacks the character of an alleged victim under 404(a)(2)(B), the door is
opened to attack the same character trait of the accused. For example, if the
defense offers evidence of the alleged victim’s violent disposition, the
prosecution can admit evidence of the defendant’s violent disposition.

Page 386
When the defendant tries to prove that he or she acted in self-defense and
introduces evidence that the deceased was known as a person of violent
character in general, the defendant must also show that the defendant had
knowledge of the victim’s violent character. Knowledge of the violent
character of the victim is necessary if the defendant is going to allege that
he or she thought his or her life was endangered. The evidence that the
defendant can use includes reputation, opinion, and specific instances of
aggressive conduct by the victim. Any evidence about the victim’s
aggressive character known to the defendant is relevant to support the
defendant’s claim that he or she feared the victim. This evidence, strictly
speaking, is not offered to prove the victim’s character in the sense that the
victim acted in conformity with the character trait of aggressiveness on the
occasion in question. Rather, the evidence is only offered to show the
defendant believed the victim was likely to be an aggressor.

FYI

Self-defense may be based on one of two theories: fear and first aggressor.
If the defendant claims that she killed in self-defense based on fear, then she
must also show that she personally knew of that aggressive character. In
making that showing, the defendant is allowed to introduce all evidence
showing the basis of her fear of the victim, including specific instances of
aggressive conduct by the victim. Such specific instances evidence is not
admissible to prove that the victim acted in conformity with an aggressive
character trait, but rather to prove that the defendant justifiably feared the
victim. To support the defendant’s claim of fear, the defendant must actually
have known of the matters claimed to justify the fear.

On the other hand, if the defendant claims that the victim was the first
aggressor, then she may offer evidence of the victim’s character for
aggressiveness to prove aggressive action. The defendant need not have had
knowledge of the victim’s aggressiveness beforehand. The proof of the
character trait, however, is limited to reputation and opinion evidence; the
defendant cannot introduce evidence of specific instances of conduct.

If, however, the defendant’s self-defense claim is that the victim was the
first aggressor, then under FRE 404(a)(2)(B) the defendant may introduce
evidence of the bad character of the deceased even though he or she had no
knowledge of it in an effort to prove that the deceased was the aggressor
and, therefore, the defendant acted in self-defense. Since the victim’s
character trait is not itself an element of the defense, however, the defendant
is limited to proof in the form of reputation or opinion evidence. FRE 405
defines the forms of evidence that may be used to prove character, when
character is provable, and limits the use of specific instances of conduct
evidence to those cases in which “character or a trait of character is an
essential element of a charge, claim, or defense.” Although being the first
aggressor is an element of the defense of self-defense based on this theory,
the character trait of aggressiveness is not itself an element of the defense.
An example of elemental use of character evidence is a case involving the
defense of entrapment, in which the defendant claims he or she was not
“predisposed” to commit the crime. In such a case, the defendant’s
character, in the sense of being criminally predisposed, could be proved by
specific instances of criminal conduct.

Victim in Sex Offense Cases

Discussion of the issues involved in sex offense prosecutions poses difficult
problems for many people, as do the prosecutions themselves. When
engaging in a study or discussion of these problems, it is necessary to
maintain a serious attitude and to be sensitive to the feelings of those who
may have suffered similar attacks.

Page 387

Historically, courts have allowed the defendant in rape and sexual assault
cases to introduce evidence of the victim’s prior sexual history in an attempt
to raise a doubt about her consent or to discredit her story. FRE 404(a)(2)
permitted the defense to put the victim on trial. The trial courts permitted
defense counsel to cross-examine the victim about her sex life, call
witnesses to testify about the victim’s sexual activity, or introduce evidence
that she had a reputation of being promiscuous or unchaste. This evidence
was used to prove that the victim voluntarily submitted to the defendant’s
sexual advances or, because she was not chaste, should not be believed. The
introduction of this type of evidence both embarrassed and demoralized
rape victims, leading many victims to refrain from reporting forcible rapes.
In recent years, these attacks by the defense upon the victims of sexual
assault have been sharply curtailed by the courts.

MYTH FACT
Most states have
The character of a victim of sexual assault or rape can
rape shield laws
be introduced in evidence by the accused to prove that
that prevent the
the victim was not actually raped or assaulted, or that
defendant from
the victim shared the blame for the situation,
putting the victim
effectively putting the victim on trial.
on trial.

In response to this growing trend, many states have enacted “rape shield
laws,” such as FRE 412, to prevent such injustices. Rape shield laws
provide that, although evidence of the sexual conduct of the victim arguably
has some minimal probative value, such evidence is nonetheless
inadmissible because of its substantial prejudicial effect upon the victim and
society’s interest in law enforcement. Under Rule 412, evidence that the
victim engaged in other sexual behavior or proof of the victim’s sexual
predisposition is inadmissible. This provision applies to both criminal and
civil cases. However, three exceptions to this rule exist:

1. Evidence of other sexual acts by the victim is admissible to prove that

a person other than the accused was the source of the semen, injury, or
other physical evidence.

2. Evidence of other sexual acts between the victim and the accused may
be used to prove either that the victim consented to the sexual conduct
in question or that the accused honestly, but mistakenly, believed the
victim did consent.

3. Evidence may be presented if its exclusion would violate the

constitutional rights of the defendant. At stake in this exception is the
defendant’s Fifth and Sixth Amendment rights to a full defense and
fair trial.
FYI

Many rape victims are reluctant to report their attacks. Most fear not being
believed by the police, as well as the possibility of public exposure. Many
are afraid that they will somehow be blamed for the attack. Several
Hollywood movies, such as The Accused and Thelma and Louise, have
addressed this issue exceptionally well by putting the viewer in the position
of the victim.

Page 388

Two examples may help clarify the third exception in the previous list. First
is the case of State v. Cassidy.16 This was essentially an acquaintance rape
case in which the accused and the victim had a previous occasional sexual
relationship and met in a bar one evening. The victim accompanied the
accused home, agreed to have sex, and, according to her, was brutally
sexually assaulted when she changed her mind. The defendant’s story was
that the two were having consensual sexual intercourse when suddenly the
victim became hysterical, screaming about her husband who was killed in
Vietnam. She said she “shouldn’t be doing this” and that she wanted to die
and wanted to be with her husband. According to the defendant, he
managed to get the victim to leave. The trial court permitted evidence of the
prior sexual conduct between the defendant and the complainant but refused
to admit evidence of a sexual encounter between the victim and another
man, who testified in the absence of the jury as part of the defendant’s offer
of proof. This testimony was to the effect that she and he had gone to her
home together about a year before the night in question. They had sexual
relations, during which she began “going crazy” and screaming about her
husband who was killed in Vietnam, after which the victim quieted down
and went to sleep. This evidence was held inadmissible under Connecticut’s
rape shield law largely because the victim had not made a rape claim
against the other man.

FYI

In 2004, the sexual assault case against Kobe Bryant for the alleged rape of
a 19-year-old woman in his hotel room was dismissed. Kobe admitted he
had sex with the woman, but he claimed it had been consensual. Almost one
year after the charges were filed, the case was dismissed because the
woman refused to testify. Her decision not to testify came after the public
release of a transcript of a closed hearing that ultimately led to the trial
judge’s ruling that certain evidence could be admitted at trial under
Colorado’s rape shield law.

The closed-door hearing involved testimony from a defense DNA expert

that the accuser had another man’s semen on her thigh and inside her
vagina, indicating that she had had sex with someone other than Bryant
between the time of the alleged sexual assault and her medical examination.
It was noted that a physical exam of Bryant after the incident produced no
indication of a second man’s DNA, leading the expert to say that she
believed that the accuser had had sex with the other man, referred to in
court records as “Mr. X,” in the hours after she was with Bryant. This
theory called into question whether the woman had lied during her
testimony in an earlier hearing. She said that she had had sex only once in
the days surrounding the Bryant incident and that the other man had worn a
condom.

Prosecutors had expected the existence of “Mr. X” to be kept secret—and

kept out of open court—under Colorado’s rape shield laws. But a court
reporter inadvertently e-mailed transcripts of the DNA expert’s testimony to
reporters in late June, and the news coverage of the hearing was
widespread. The crowning blow, experts said, came July 23, when the court
decided to admit the “Mr. X” evidence, as well as the accuser’s sexual
history with two key witnesses. This evidence was not barred by the rape
shield law, according to the judge, because under Colorado’s counterpart to
FRE 412(1)—Colo. Rev. Stat. § 18-3-407—it was admissible to prove that
a person other than the accused was the source of the semen, injury, or other
physical evidence.

In contrast is the case of Olden v. Kentucky.17 In that rape case, the African
American defendant wanted to introduce evidence that the victim, who was
Caucasian, was living with another African American man when she went
for a ride with the defendant and had consensual sex. The defendant
believed that the victim fabricated the sexual assault charge to save her
relationship with the other man. The Supreme Court of Kentucky held that
the trial court should not have excluded the evidence under Kentucky’s rape
shield law but that the evidence was still properly held inadmissible at trial
because of “prejudice” related to the mixed races of the participants. In
addition, the trial court held that the Kentucky rape shield law required
exclusion of the evidence. The Supreme Court of the United States
overturned the conviction, stating that denial of the defendant’s right to
introduce the evidence of the victim’s relationship with the other man
deprived the defendant of his Sixth Amendment rights to confrontation.

Page 389

These cases illustrate just some of the varying circumstances that might
arise under the third exception to the rape shield law. The circumstances
under which the defense may claim the need to introduce evidence of a sex
crime victim’s conduct in the name of the constitutional rights of the
defendant are as varied as the ingenuity of counsel. The courts are likely to
keep in mind, however, that the rape shield laws were designed to balance
the fair trial rights of the defense against the interests of society in the
effective prosecution of sexual offenses, along with the important rights of
the victims of such crimes.

State of Mind of Homicide Victim When

Defendant Claims Self-Defense or Accident
When the defendant has been charged with homicide and the defense
contends that the killing was an accident or was in self-defense, the
prosecution may present evidence that reflects the state of mind of the
deceased. Statements made by the victim indicating fear of the defendant
may be introduced. For example, if a husband is charged with the homicide
of his wife, statements of the wife to others that she was afraid of her
husband or statements concerning threats made by him to kill her are held
to be admissible. Very often, neighbors and close family friends are good
sources of such information. These statements, although retold by a third
party, would not be considered inadmissible hearsay because they are
offered to prove the state of mind or emotional feelings of the victim prior
to death. The victim’s state of mind is relevant because it is offered to
overcome the allegation that the killing was by accident or in self-defense.
Thus, if the victim was in fear of harm by the accused, then this evidence is
relevant to prove that the accused was the one responsible for the murder.
Likewise, as previously mentioned, a defendant may also present statements
showing that the victim made death threats against the defendant. The
defendant may offer these statements to substantiate his or her contention of
acting in self-defense.

MYTH FACT
Statements by a
Statements by a homicide victim indicating fear
homicide victim that he
of the accused are not generally admissible to
or she feared the
prove the guilt of the defendant. It is only when
accused are readily
the defendant claims self-defense or accident that
admissible to prove the
the victim’s fear of the accused becomes relevant.
guilt of the accused.
Page 390

Character of Witness
The final area in which character evidence may be introduced is in
attacking or supporting the credibility of a witness. Universally, evidence
relating to a witness’s untruthfulness may be used to attack that witness,
either by cross-examination as to bad acts bearing upon untruthfulness or by
introduction of evidence of conviction of a serious crime or a crime
involving dishonesty. Such evidence is relevant because a jury will take a
witness’s testimony seriously only if the jury believes that the witness is
telling the truth on the stand. It should be noted that evidence of truthful
character is admissible only as rebuttal evidence once the character of the
witness has been attacked. The side opposing the witness must attack the
truthfulness of a witness, either through opinion or reputation evidence,
before rebuttal evidence of the witness’s truthfulness can be introduced. Not
every witness’s character will be attacked. Usually, only the character of
witnesses who testify to pertinent information regarding the guilt or
innocence of the accused will be called into question, such as co-
conspirators, informants, and alibi witnesses.

Along with opinion and reputation evidence, specific instances of conduct

relating directly to the witness’s truthfulness or felony convictions may be
asked about on cross-examination. Specific instances of conduct that relate
to the witness’s honesty, such as previous instances of perjury or false
statements, are always proper subjects for inquiry. Also, any previous
serious criminal convictions, defined as crimes that are punishable by death
or imprisonment in excess of one year, may also be introduced, but their
admissibility is subject to the trial court’s balancing probative value against
potential for unfair prejudice. As mentioned previously, under FRE 403, for
example, the trial judge must determine that the probative value of the
conviction is substantially outweighed by its potential for unfair prejudice
to rule the evidence inadmissible.
If the witness has not suffered a conviction for a serious crime or one
involving dishonesty, then the cross-examining lawyer must accept any
response that the witness gives to an inquiry of whether he or she
committed prior bad acts bearing upon untruthfulness. If the witness denies
that such conduct ever occurred, the questioner may not go on to prove that
the conduct in question did, in fact, occur. Any party may attack the
credibility of a witness, including the party who has called the witness.
Usually, the defense will attack an informant for the prosecution for
untruthfulness or try to get the informant to contradict previous out-of-court
statements during his or her in-court testimony.

FYI

Under the rules of evidence, anyone may attack a witness’s credibility. That
is why, in the O.J. Simpson trial on charges for killing his wife and her
friend, Ronald Goldman, Judge Ito permitted the prosecution to examine
Brian “Kato” Kaelin as if he were being cross-examined after they did not
get the testimony they had expected from him. Kaelin’s relationship with
Simpson, his desire to benefit the defense, and his “improper” book deal
were all brought out in an attack on his credibility. If he had been convicted
of a serious crime, the prosecution would have raised that issue during this
examination as well.

Page 391

The Accused as Witness

Although constitutionally the accused does not have to take the stand in his
or her own defense, often he or she chooses to do so. In that event, the
accused is considered a witness and his or her character for truthfulness also
becomes an issue. The prosecution may then open inquiry into the
defendant’s character for untruthfulness and may call character witnesses to
attest to the defendant’s lack of truthfulness. The prosecution may also
introduce specific instances of conduct in an attempt to discredit the
defendant’s honesty, but this type of evidence is usually severely limited.
Under FRE 609, for example, an accused’s previous conviction, which
carries a punishment of death or imprisonment in excess of one year, may
be admitted but is subject to a special balancing test weighted in favor of
exclusion of the evidence. This special balancing test requires that the trial
judge must find that evidentiary value of the previous conviction is greater
than the prejudicial effect to the accused before it can be admitted. In other
words, if the evidence is even slightly more prejudicial than probative, then
the judge must find it inadmissible. Thus, in a homicide trial, a previous
conviction for murder may not be admissible, as it would be highly
prejudicial to the current charge. Nevertheless, a previous conviction for
embezzlement would not have the same prejudicial effect and therefore
would likely be admitted. Previous convictions that involve dishonesty or
false statements do not have to be balanced and are automatically
admissible under FRE 609(a)(2). The rule also provides a time limit on the
convictions that may be introduced. Any conviction that is more than 10
years old is generally not admissible.
Review and Application
Summary
1. Direct evidence is the testimony of a person who asserts or claims to
have actual knowledge of a fact, such as an eyewitness. Circumstantial
evidence is evidence that tends to establish the facts in dispute by
proving another set of facts from which an inference or a presumption
can be drawn.

2. The judge decides the relevance of circumstantial evidence either

when someone objects to its admission at trial or upon a motion in
limine made at any time. To meet the requirement of relevance, the
evidence must have “any tendency to make the existence of any fact
that is of consequence to the determination of the action more probable
or less probable than it would be without the evidence.”

3. The law generally prohibits evidence of the defendant’s character

because it is often irrelevant and, even when relevant, is likely to be
more prejudicial than probative.

Page 392

4. The principal noncharacter uses of other crimes, acts, or wrongs are to

prove motive, opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident.

5. A motive is that which moves a person to act or explains the reason a

person acted. Intent, on the other hand, is a state of mind; it expresses
mental action that is usually coupled with an outward physical act to
cause a particular result.

6. Similar uncharged acts of the accused may be introduced to show that

the defendant performed the charged acts as part of a common design
or plan, where the common features indicate the existence of a plan
 rather than a series of similar, spontaneous acts. When such evidence is
used, it is for the purpose of showing that the accused did the charged
act.

7. The prosecution may use other misconduct evidence to disprove the

possibility that no criminal conduct has taken place or that the crime
occurred as the result of a mistake or an accident. It may also use such
evidence when the defendant, charged with some particular criminal
activity, denies it occurred and claims innocence. For example, assume
a man is accused of sexual molestation of one child and he admits that
he was in the child’s company but denies any sexual contact. The
prosecution could introduce evidence that the accused molested
another child on a different occasion to refute the defendant’s claim of
innocent association.

8. Modus operandi is a distinctive pattern of committing crimes that, in

the context of the other acts evidence rule, can be used to prove
identity.

9. Some examples of circumstantial evidence of consciousness of guilt

are fleeing from the scene of a crime, being in a highly emotional state
after a murder, using a fictitious name with the police, refusing a
sobriety test, and refusing to appear in a lineup.

10. The prosecution may introduce evidence of the defendant’s bad

character under two circumstances: (1) When the defendant has “put
character in issue” by introducing evidence of good character, the
prosecution can rebut that evidence with evidence of bad character;
and (2) when the defendant is charged with sexual assault or child
molestation, then the prosecution can introduce evidence of past sex
offenses or child molestation offenses, under FRE 413 or 414, to prove
the defendant has a propensity to commit such acts.

11. A victim’s character usually becomes an issue in murder and assault

cases when the defendant claims self-defense based on either a fear of
attack by the victim or a claim that the victim was the first aggressor.
12. Rape shield laws generally prohibit the accused in sexual assault or
rape cases from introducing evidence of the victim’s character for
sexual behavior. These laws were enacted to promote the reporting and
prosecution of such cases by protecting the victims of these crimes
from being put on trial themselves.

Page 393

13. A party may attack an opposing witness’s character by (1) introducing

evidence of a conviction of a crime punishable by death or
imprisonment in excess of one year; (2) introducing evidence of
previous instances of perjury or false statements; and (3) inquiring, on
cross-examination, whether the witness engaged in conduct bearing
upon untruthfulness, but the questioner must accept the witness’s
answer and cannot introduce rebuttal evidence.

14. The special balancing test requires that the trial judge determine that
the probative value of the evidence of a previous conviction outweighs
the prejudicial effect to the accused before it can be admitted. In other
words, if the evidence is even slightly more prejudicial than probative,
then the judge must keep it out.

Key Terms
direct evidence 369

circumstantial evidence 369

relevance 371

motion in limine 372

balancing test 372

character evidence rule 374

evidence of other crimes, acts, or wrongs 374

 motive 375

intent 375

doctrine of chances 378

modus operandi 379

consciousness of guilt 380

defendant’s good character rule 381

impeachment 382

self-defense 386

rape shield laws 387

Questions for Review

1. What is the difference between direct and circumstantial evidence?

2. When and how does the trial judge determine the relevance of
circumstantial evidence?

3. Why does the law generally prohibit evidence of the defendant’s

character?

4. What are the principal noncharacter uses of “other crimes” evidence?

5. What is the difference between motive and intent?

6. How might the prosecution use “other crimes” evidence to prove a

defendant had a design or plan?

7. How might the prosecution use another act of the defendant to refute a
claim of mistake or accident?
 8. What does the term modus operandi mean in the context of the “other
acts” evidence rule?

9. Under what circumstances may the prosecution prove the defendant’s

bad character if the defendant has not taken the stand?

10. What are the laws shielding victims of sex offenses?

11. What are the ways opposing counsel might attack a witness’s
character?

12. Describe the special balancing test used in evaluating the admissibility
of prior uncharged felony convictions of a defendant who takes the
stand.

Page 394

Thinking Critically About Evidence

1. A defendant is charged with the crime of pickpocketing. The victim
testifies that the defendant approached him on the street and said that
his wife had just given birth to a baby boy. The defendant then put his
arm around the victim and offered him a cigar. After the defendant left,
the victim noticed that his wallet was missing from his back pocket.
The prosecution wishes to call several other witnesses to testify that
the defendant had approached them also with the same story and that
their wallets had also been stolen. Should the judge allow the
prosecution to call these witnesses? Explain why or why not.

2. In the trial of O.J. Simpson, Judge Lance Ito allowed the prosecution
to introduce evidence of Mr. Simpson’s misconduct involving some
acts of domestic violence. For example, some five years before she
died, Mr. Simpson attacked and hit his then-wife Nicole Brown
Simpson. Under what doctrine was this act of uncharged misconduct
permitted to be introduced into evidence? Was Judge Ito’s ruling
correct?
Workplace Application
1. An officer is investigating a sexual assault (rape) case. The officer
learns that the victim of the assault is a prostitute. How does this fact
influence the officer’s investigation and presentation of the case to the
prosecutor? How do you think defense counsel will attempt to
discredit the victim during trial?

Ethical Dilemma
1. The investigating officer is testifying at a burglary trial. The prosecutor
asks what first drew the officer’s attention to the accused as a suspect
in the case. The officer’s suspicion was based on information from
informants who identified the accused in connection with another
burglary in the same neighborhood two weeks before. The officer
arrested the suspect based upon this information and before the
accused’s fingerprints were found at the scene of the crime. How
should the officer answer the prosecutor’s question?

Endnotes
1. 1A Fed. Jury Prac. & Instr. § 12.04 (6th ed. 2018).

2. Holland v. United States, 348 U.S. 121 (1954).

3. 1A Fed. Jury Prac. & Instr. § 12.04 (6th ed. 2018).

4. Johnson v. State, 872 P.2d 93, 96–97 (Wyo. 1994), quoting Thompson
v. United States, 144 F. 14, 18 (1st Cir.1906).

5. 485 U.S. 681 (1988).

6. 7 Cal. 4th 380 (1994).

7. 14 Cal. 2d 403 (1939).

 8. Edward J. Imwinkelried, The Dispute over the Doctrine of Chances, 7
Crim. Just. 16, 18 (1992 Fall).

9. 11 Crim. App. 229 (1915).

10. 502 U.S. 62 (1991).

Page 395

11. Commonwealth v. Knapp, Sup. Jud. Ct. of Mass., 1830, VII Am. St.
Tr. 395, 516, as cited and quoted in Roger C. Park & Richard D.
Friedman, Evidence, Cases and Materials 221–22 (12th ed. 2013).

12. Michaelson v. United States, 335 U.S. 469, n. 16 citing People v.

Laudero, 85 N.E. 132 (N.Y. 1908) (1948).

13. 179 F.3d 889 (10th Cir.), cert. denied 528 U.S. 944 (1999).

14. United States v. Withorn, 204 F.3d 790 (8th Cir. 2000).

15. Id.

16. 3 Conn. App. 374, 489 A.2d 386, cert. denied 196 Conn. 803, 492
A.2d 1239 (1985).

17. 488 U.S. 227 (1988).

Design Element: ©Ingram Publishing

Page 396

12

Documentary Evidence and the Right

of Discovery
 Corbis/SuperStock

Page 397

Chapter Outline
Documents as a Kind of Evidence

Authentication

Best Evidence Rule

Primary Versus Secondary Evidence

Lost or Destroyed Writings, Recordings, or Photographs

Document in Possession of Adverse Party

Collateral Matter

Document in Custody of Public Officer

Original Documents Too Voluminous to Examine

What Is an Original Document?

Inscribed Chattel

The Right of Discovery in Criminal Cases

Discovery Through Preliminary Hearing

Growth of the Right of Discovery

Pretrial Discovery

Matters That May Be Examined

Defendant’s Right to Information About Prospective Witnesses

Defendant’s Right to Identity of Informers

Procedure for Pretrial Discovery by Defendant

Prosecution’s Right of Discovery

Defendant’s Right to Original Investigative Notes and Recordings

Review and Application

Chapter Objectives

This chapter explores the rules of evidence relating to documents as evidence and
the right of discovery of evidence before the trial begins (pretrial). After reading
this chapter, you will be able to:

Name the two classifications of documents and each of their categories.

List the six situations in which secondary evidence of the contents of a

writing may be introduced.

Explain the three foundational elements that must be shown before

secondary evidence is admitted.

State when a defendant is not required to comply with a subpoena duces

tecum and produce a document in his or her possession.

Name the three types of discovery the defendant can obtain from the
prosecution under FRCrP 16 and which type is granted reciprocal discovery.

Describe what statements are covered by the Jencks Act.

Identify the range of matters that may be subject to discovery by the

defendant in a criminal case.

List the defenses that the accused may be required to disclose to the
prosecution prior to trial.
Page 398

Documents as a Kind of Evidence

Documents—writings, recordings, and photographs—are another kind of
evidence by which facts are presented during a judicial proceeding. The
FRE, Rule 1001(a), defines a “writing” as “letters, words, numbers, or their
equivalent, set down in any form.” Rule 1001(b) defines “recording” as
“letters, words, numbers, or their equivalent recorded in any manner.” And
Rule 1001(c) defines “photograph” as “a photographic image or its
equivalent stored in any form.” Documents may be classified as (1) public
or (2) private. Public documents may be further categorized as (1) laws; (2)
judicial records; (3) other official documents, such as records or driver’s
licenses, marriage applications, and birth certificates; and (4) public records
of private writings, such as records of deeds and mortgages. Private
documents are the private writings or recordings of individuals, such as
letters, memoranda, answering machine messages, e-mail messages, text
messages, suicide notes, and wills.

Although private documents generally play a more significant role in the

trial of civil matters, there are times when they become an important part of
a criminal case. For example, the submission into evidence of an extortion
note may be necessary to prove a charge of extortion; a suicide note or a
threatening letter may be a part of the proof in a homicide case; or the “date
book” of a prostitute may be presented in a prostitution trial. These articles
also fall into the category of real evidence, as well as the documents
category.

The use of documentary evidence implicates two fundamental aspects of

the rules of evidence: authentication and the best evidence rule.
Authentication is a foundational requirement that authorship or genuineness
be established. The best evidence rule requires that, when one seeks to
prove the contents of a writing, recording, or photograph, the original must
be presented, unless there is good reason the original cannot be provided.
Authentication
Authentication is a prerequisite to the introduction in evidence of a
document—or, for that matter, many types of evidence. The rule of
authentication requires that the party introducing the document show that
the document is what the party claims it to be. For instance, if the
prosecution is trying to introduce an extortion note against the defendant in
support of an extortion charge, the prosecution must first show that the note
was made by or at the direction of the defendant. More specifically, the
prosecution must introduce evidence sufficient to support a jury finding that
the note is indeed attributable to the defendant. This can be done in several
ways, for example, through the testimony of a witness with appropriate
knowledge, the testimony in the form of nonexpert opinion on handwriting,
a comparison of handwriting by the jury or an expert, or a showing of
distinctive characteristics in the note.

The common law once required that a witness with knowledge of the
document attest to the fact that the document was genuine, and that it was
what its proponent claimed it to be. The modern rule, for example, FRE
901(b), expressly allows an unlimited number of ways to authenticate a
piece of evidence. The Chief United States Magistrate Judge for the District
Court of Maryland, in a 2007 decision in Lorraine v. Markel American
Insurance Company,1 noted that electronically stored information is
admissible in evidence subject to the same authentication requirements as
any other evidence. For that matter, such evidence is subject to all the rules
of evidence. And, though the Lorraine case was a civil case, its holding is
equally applicable in a criminal trial.

Page 399

In addition to authentication, the party introducing the document must show

the relevance of the document to the issues of the case. After this has been
done, the document will be offered into evidence. Meeting the requirements
of authentication and relevance is known as laying the foundation for the
introduction of the writing, recording, or photograph into evidence. If the
judge agrees that the evidence of the document’s genuineness is enough to
convince the jury and that the document is connected with the issues of the
case and is what it is claimed to be, the judge will admit it into evidence,
and the document will then speak for itself.
Best Evidence Rule
In proving the terms of a writing, the original writing must be produced,
unless the document is shown to be unavailable for some reason other than
the bad faith act of the party seeking to introduce the document. This
provision is known as the best evidence rule. The rule says that, if
information is to be offered during a trial concerning what is contained in a
writing, the best evidence, or best proof, of the contents of the writing is the
writing itself. The original writing must, therefore, be introduced and must
be proven to be genuine. Today this rule is not as important as it once was,
for FRE 1003 allows a duplicate to be admitted to the same extent as the
original, unless there is a question as to its authenticity or if it would be
unfair to do so. A duplicate has been described as a copy “produced by
methods possessing an accuracy which virtually eliminates the possibility
of error.”2 Photocopies, or copies made by any mechanical means, are
acceptable. Copies produced manually, either handwritten or typed, are not
considered duplicates. The genuineness of a document or writing is proven
through the process of authentication described previously.

FYI

The way the best evidence rule operates can be somewhat confusing. The
rule only applies when one seeks to prove the contents of a writing,
recording, or photograph. Therefore, the way a lawyer asks a question about
a writing or the way a witness answers may determine whether or not the
rule applies. For example, assume that the questioning lawyer is trying to
prove that the testifying officer wrote a report about the investigation. If the
questioning lawyer asks the witness, “What did the report say?” that
question seeks to prove the content of the writing (the report) by its form
and would violate the best evidence rule and would be objected to, and the
answer would be ruled inadmissible. However, if the lawyer asked instead,
“What did you do after you investigated?” that question avoids the best
evidence rule entirely. Similarly, if the witness responded, “I wrote a report
in which I stated … ,” that would violate the best evidence rule. But if the
officer merely answered, “I wrote a report,” that would avoid the best
evidence rule entirely.

Page 400

The best evidence rule was adopted many years ago and, although the
reasons were good at the time, they are not as compelling today due to
modern technology. The first reason was that the rule came into being at a
time when the only way in which copies of a document could be made was
to copy the wording and symbols by hand. It was common knowledge that
copying by hand created a great likelihood of mistakes and inaccuracies.
Moreover, hand copying opened the door to possible fraud and deceit.
Another reason for preferring the original document was the danger of
misinterpretation and the possibility of omitting important portions of the
contents during the testimony because of faulty memory. With the advent of
copiers, faxes, smartphones, digital scanners, and other devices, strict
adherence to the best evidence rule is no longer necessary.

MYTH

FACT
The best
evidence
rule The best evidence rule applies only to writings, recordings,
requires and photographs. It is a rule that requires that the original of
that the the writing, recording, or photograph be presented, unless
best there is some valid reason for tendering secondary evidence.
evidence Otherwise, there is no “better evidence” rule such as stated in
available to this myth. There is no legal requirement that the best available
prove a evidence to prove a specific point be introduced. In some
point be limited circumstances, if a party had the ability to produce
offered evidence and failed to do so, the jury can be instructed by the
during a judge that they may infer that the evidence would have been
trial or unfavorable to the party that withheld it.
other
proceeding.
The best evidence rule is very easy to satisfy. First, most modern “copies”
of a writing constitute a “duplicate.” Photocopies, faxes, and computer-
generated “copies” of writings qualify as duplicates. A duplicate of a
recording is any counterpart produced from the same matrix as the original
by means of mechanical or electronic recording. Under the modern best
evidence rule, a duplicate is admissible as though it were an original. The
negative and any print constitute the original of a photograph. Therefore,
most means of producing copies today will result in a “copy” that satisfies
the best evidence rule. Finally, if the lawyer asks his or her questions in the
proper form, the witness will not be called upon to testify in such a way as
to violate the best evidence rule.

Primary Versus Secondary Evidence

When an original document is produced in court, it is known as the primary
evidence in relation to its own contents. When the original is introduced,
that constitutes compliance with the best evidence rule. Where it is either
impossible or impractical to produce the original document in court, a party
may prove the contents of the document by way of an exception to the best
evidence rule. The FRE allow a party to prove the contents of a document
by other evidence, such as by any other form of the writing—even oral
testimony. When other evidence is substituted for the original document,
the substitute is known as secondary evidence.

The most common form of secondary evidence is testimony from a witness.

Anytime a witness testifies in such a way as to state in court the contents of
a writing, recording, or photograph, that testimony constitutes secondary
evidence. Whether that testimony will violate the best evidence rule
depends upon whether one of the exceptions to the requirement of the
original has been shown to exist.

Page 401

The following are the most frequently encountered situations in which

secondary evidence of the contents of a writing may be introduced. These
exceptions occur when the original writing, recording, or photograph
 1. has been lost or destroyed;

2. is unobtainable by any available judicial process or procedure;

3. is in the possession of an adverse party and, after a notice to produce

it, the adverse party fails to do so;

4. is in the custody of a public officer;

5. relates to a collateral matter; or

6. is voluminous and cannot be examined without a great loss of time,

making a summary of the writing’s contents sufficient.

Whenever secondary evidence is offered in lieu of the original document,

the necessary foundation must be laid before the secondary evidence is
admitted. Three things must be shown:

1. that there has been a writing in existence;

2. that the secondary evidence is a genuine copy of the original or

accurately relates the contents of the original; and

3. the reason, or justification, that the secondary evidence is being offered

instead of the original.

Lost or Destroyed Writings, Recordings, or

Photographs
When a party alleges that the original document cannot be produced
because it was lost, there must be a showing that the party seeking to prove
its contents diligently searched for the document. The extensiveness of the
search necessary will vary depending upon the kind of document involved
and its importance to the case. The party must show, at the least, that
contact was made with the last person known to have had the document or
with the persons most likely to know its whereabouts, and that the last place
where the document was known to be was searched without result.
The document may be unobtainable because it is out of the state or
otherwise beyond the reach of the court. The party seeking to prove the
contents of such a document must first show that the document could not be
obtained through the use of a subpoena or some other judicial process. Once
the party establishes that such efforts have been made, he or she may then
prove the contents of the document by secondary evidence.

A document that is unobtainable from a third person’s possession is

essentially lost. Thus, when the party seeking to prove the contents of the
writing can prove that the original document is in the hands of a third party,
who for some reason refuses to cooperate and release the document, even in
the face of a subpoena, secondary evidence may then be admitted in the
same manner as if the original were lost.

When a party claims that a writing has been destroyed, that party must also
show that the destruction was unintentional. If the writing was destroyed
intentionally, the party must show that the intentional destruction was not in
bad faith or with fraudulent intent. Otherwise, the introduction of secondary
evidence will be denied.

Page 402

Document in Possession of Adverse Party

When an original document is in the hands of a defendant in a criminal trial,
notice must be given to the defendant to produce the original before
secondary evidence may be introduced in its place. There is no particular
form necessary for this notice. It may be merely an oral request to produce
the document, but a reasonable time must be allowed for the holder to
comply. As a practical matter, though, formal notice, known as notice to
produce, should be given. If the document is essential at trial, a subpoena
duces tecum should be served on the defendant rather than a notice to
produce. The Fifth Amendment privilege against self-incrimination allows
the defendant to withhold a document lawfully, if such document would
incriminate the defendant. The privilege against self-incrimination does not
prevent secondary evidence from being admitted to prove the contents of
the writing or document.
Collateral Matter
Secondary evidence of the contents of a document may be utilized when
such a document is not closely related to a controlling issue at trial. Hence,
if the contents of a document are only incidentally related to the issues at
trial, the original need not be produced. In such cases, the document is said
to relate to a collateral matter. For instance, the charge of grand theft
requires that the property stolen be above a specific dollar amount.
Assuming the grand theft charge involves a stolen diamond, a witness
would likely be allowed to testify that the diamond was purchased from a
licensed pawn broker without production of the broker’s license, despite the
fact that the license is “best evidence.” If, on the other hand, a genuine
dispute exists as to the contents of the document, the judge will not likely
consider the document as relating to a collateral matter.

Document in Custody of Public Officer

In most instances, original public records can be produced in court.
However, the possibility of loss or destruction is too great; therefore, it is
impracticable to do so in most cases. Thus, the modern rule—for example,
FRE 1005—expressly exempts public records from the requirements of the
best evidence rule. In addition to the threat of loss or destruction, the
production of public records causes inconvenience to the public as a whole,
as well as to the people in charge of such documents. Consequently,
secondary evidence in the form of a copy of an original is admissible to
prove the contents of the record. Authentication of the copy does not
require additional evidence, as long as the copy is accompanied by a
statement from the person, official, or clerk having custody of the record
certifying that the document is a true copy of the original. Often, a certified
copy of a public record also has an official seal. This is known as a certified
copy of the original document.

Sometimes in criminal cases, the prosecution must prove that the accused
was convicted of a crime in another state or in another court proceeding. In
such cases, the record of conviction must be certified by the clerk of the
court, attesting that the document is a true copy of the original. The
presiding judge of that jurisdiction must also certify that the clerk correctly
certified the form. This kind of copy is sometimes referred to as an
exemplified copy of the original.3 Verification by both the clerk and the
judge is necessary because the record is most important to the issues of the
case, and therefore someone in addition to the officer having custody of the
record should attest to the accuracy of the copy.

Page 403

Original Documents Too Voluminous to Examine

Sometimes at trial, it is necessary to use information from the records of a
business or other entity to shed light on the issues of the case. Although this
situation occurs more frequently in civil trials, criminal trials may also
involve such records. The FRE specifically provide that a summary, chart,
or calculation of voluminous records may be presented in the place of the
records themselves. The records, though, must be made available for
examination and/or copying by the other party at a reasonable time and
place. This exception to the best evidence rule, known as the voluminous
records rule, is simply a way of expediting the judicial process.

What Is an Original Document?

In cases in which there is only one original document and that document is
produced in court, the best evidence rule has been satisfied and no problem
arises. It is therefore necessary to determine what constitutes an original
document. The FRE define an original document as the document itself, “or
any counterpart intended to have the same effect by the person who
executed or issued it.” Additionally, “for electronically stored information,
‘original’ means any printout—or other output readable by sight—if it
accurately reflects the information.” With respect to photographs, the
original is the negative or any print made from the negative. It should be
emphasized again that, although an original document is the best evidence,
a duplicate of the original is admissible to the same extent as the original.

Inscribed Chattel
An inscribed chattel is an object with words and/or images written, painted,
or engraved on it. For instance, the name or insignia of a business is often
painted on the side of a truck, or the name or identification number of a law
enforcement officer is engraved on his or her badge. In these situations, if
the best evidence rule were strictly followed, the property (e.g., the badge
and the truck) would have to be produced in court as the “originals.”
Fortunately, the best evidence rule may not strictly apply to inscribed
chattels. A judge has considerable discretion in allowing the introduction of
secondary evidence to prove the terms of an inscription on a chattel. In
determining whether to apply the best evidence rule to inscribed chattels,
the judge will look at factors “such as the need for precise information as to
the exact inscription, the ease or difficulty of production, and simplicity or
complexity of the inscription.”4 If the judge determines that it is not
necessary to produce the chattel, then ordinarily a witness who observed the
inscription on the chattel will be allowed to testify as to the inscription, and
the object need not be produced in court.

Page 404

Application Case

In United States v. Duffy,5 the defendant was convicted of interstate

transportation of a motor vehicle. He was accused of stealing a car from a
dealership at which he was employed in Florida and driving it to California,
where it was found. Duffy claimed that he did not take the car but had
hitchhiked from Florida to California, where he was found. Among the
evidence against Duffy at trial was a shirt found in a suitcase in the trunk of
the car. The shirt had a laundry mark reading “D-U-F,” according to the
testimony of the police officer who found it. The defense objected to this
testimony, insisting that the shirt itself had to be brought to court to prove
the contents of the inscription. Both the trial court and the United States
Court of Appeals for the Fifth Circuit disagreed, concluding that the object
was a chattel not subject to the best evidence rule.
The Right of Discovery in Criminal
Cases
The right of discovery is a right afforded to the adversary in a trial to
examine, inspect, and copy the evidence in the hands of the other side. Until
the mid-twentieth century, there were no formal provisions for discovery in
criminal cases. Both the prosecutor and the defense counsel were limited to
discovery of the other’s case by what they could learn from their own
factual investigations, pretrial proceedings, and informal exchange of
information, if any. A constitutional obligation required the prosecutor to
reveal evidence favorable to the defense (exculpatory evidence), but this
was a narrow exception to the prevailing status of no discovery in criminal
cases generally. A major impediment to discovery in criminal cases has
been the view that fairness requires discovery to be reciprocal. Because of
the defendant’s Fifth Amendment self-incrimination and attorney-client
privileges in criminal cases, such reciprocity is impossible. To a large
extent, these impediments to discovery still exist in principle. However, a
number of events—the 1946 enactment of Rule 16 of the Federal Rules of
Criminal Procedure (FRCrP); the establishment of defense discovery rights
by California case law in the 1950s;6 the proposals for discovery suggested
in an American Bar Association study first published in 1968 and approved
in 1970;7 the adoption of the ABA’s proposals in a number of states,
including Florida, Illinois, and New Jersey, between 1968 and 19708; and
the adoption of similar provisions in other states—have led to a substantial
increase in discovery in criminal cases by both the prosecution and the
defense. In fact, it is fair to say that, although there is only limited discovery
in criminal cases in federal courts, the majority of states allow broad
discovery in criminal cases.

FRCrP 16 provides for discovery in criminal cases to achieve a number of

goals, including providing the defendant with sufficient information to
plead and prepare for trial, avoiding surprises to both sides, promoting
judicial economy, and speeding up the trial process. The rule permits, upon
request, the defendant to discover from the prosecution.

Page 405

1. any written statements or transcriptions or recordings of oral

statements made by the defendant possessed by the prosecution;

2. the defendant’s prior criminal record; and

3. documents, photographs, tangible objects, results of physical and

mental examinations, and test reports possessed by the prosecution that
the prosecution intends to use as evidence or that the court deems
material to the defendant’s trial preparation. If any of the materials
specified in this item are granted to the defendant, the prosecution is
granted reciprocal discovery.

Because of the “one-way street” limitation, discovery historically has been

relatively rare in criminal cases, with three major exceptions:

1. the right of the defendant to discover the identity of a confidential

informant when vital to the defense, and at the time of trial in any
event, in many cases;

2. the obligation of the prosecution to disclose evidence favorable to the

defense—Brady material, named after the Supreme Court decision in
Brady v. Maryland;9 and

3. the defendant’s right to discover written or recorded statements of

witnesses, required to be turned over in accordance with the Jencks
Act10 in federal court and under similar state statutes.

In the absence of a statute or court rule, the trial court has complete
discretion in granting or denying a defendant’s discovery requests. The
defendant will often have the burden of showing that the discovery request
is necessary and material to the defense, is in the interest of a fair trial, and
is not merely a “fishing expedition.”
In Brady v. Maryland,11 the United States Supreme Court announced for the
first time a general prosecutorial duty to disclose exculpatory evidence to
the defendant before trial, i.e., any evidence that would tend to exonerate
the defendant. Brady and a man named Boblit were tried separately for
murder, convicted, and sentenced to death. Brady admitted his participation
in the crime but claimed that Boblit had done the actual killing. Prior to the
trial, Brady’s counsel asked the prosecution to allow him to examine
Boblit’s out-of-court statements. Several of those statements were shown to
him, but one in which Boblit admitted the actual killing was withheld and
did not come to Brady’s notice until after Brady had been tried, convicted,
and sentenced and after his conviction had been affirmed on appeal.

The Supreme Court held that the prosecution’s suppression of evidence

favorable to an accused upon request violates due process where the
evidence is material either to guilt or to punishment, irrespective of good
faith or bad faith on the part of the prosecution. In so concluding, the Court
stated:12

Society wins not only when the guilty are convicted but when criminal
trials are fair; our system of the administration of justice suffers when
any accused is treated unfairly. An inscription on the walls of the
Department of Justice states the proposition candidly for the federal
domain: “The United States wins its point whenever justice is done its
citizens in the courts.”

Page 406

ON THE JOB

If a police officer has or knows of facts and evidence that would tend to
exonerate the defendant, the officer should inform the prosecutor.
Otherwise, subsequent revelation of this information may result in a
mistrial, a new trial on appeal, or reversal of the conviction in a subsequent
habeas corpus proceeding.

In cases subsequent to Brady, the Court has stated that “a failure by the
government to disclose material exculpatory information in its possession
[is] a constitutional violation only when a reasonable probability exists that,
absent the failure to disclose, the result of the trial (conviction) would have
been different.”13

Application Case

The case of Banks v. Dretke14 is illustrative of the consequences of the

prosecution’s failure to comply with Brady requirements. Banks was
convicted of capital murder and sentenced to death in a Texas court. The
prosecution’s case included testimony, in both the guilt and penalty phases,
of two witnesses, Cook and Farr. Prior to trial, the prosecution offered the
defense counsel full discovery without the necessity of a motion; however,
the prosecution did not disclose that Cook had been extensively coached in
his testimony and Farr had been a paid informant who had instigated
Banks’ procuring a gun after the killing, a fact that Farr testified to at the
penalty phase to prove that Banks had a continuing violent disposition. That
fact could have played a substantial role in the ultimate death penalty
determination. In addition, the prosecution did not reveal the fact that both
of these witnesses gave false testimony. All of this information ultimately
came to light in the federal habeas corpus proceedings instituted by Banks
to overturn his conviction and the sentence of death.

The case ultimately went to the United States Supreme Court. The Court
found that the failure of the prosecutor to disclose that Farr was a paid
informant and that Cook was coached by Deputy Huff had violated the
Brady standards. According to the Court’s Brady rules, in order for a
defendant to succeed on a Brady claim,

1. the evidence at issue must be favorable to the accused because it is

exculpatory or impeaching;

2. the defendant must show that the state suppressed the evidence at
issue; and

3. the defendant must show that prejudice ensued.

With respect to the first requirement, the Court found that Farr’s paid
informant status plainly qualified as evidence advantageous to Banks, as did
Cook’s extensive coaching. As for the second requirement, the Court found
that the conduct of the prosecution in withholding the information and
allowing false testimony amounted to deliberate suppression of such
information. Finally, the Court observed that prejudice, for Brady purposes,
means “material” in the sense that “the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine
confidence in the verdict.” The Court found this third requirement satisfied
on the view that, if the jury had known that Farr was a paid informant and
Cook was coached, they may not have given any weight to their testimony,
especially Farr’s uncorroborated testimony that Banks was violent and
would commit other violent acts. As a result, the Court affirmed the
appellate court’s decision to set aside the death penalty.
Page 407

Discovery Through Preliminary

Hearing
Generally, the defendant must make a discovery request prior to trial.
However, in many jurisdictions, even before the accused might have the
opportunity to consider such a request, the prosecution may be required to
present evidence at a preliminary hearing. A preliminary hearing is a stage
in the criminal prosecution that is held for the purpose of determining
whether probable cause exists to believe the accused has committed a
particular offense. It is impossible to hold a preliminary hearing without the
prosecution revealing a portion of its case. At the preliminary hearing, the
prosecution must present evidence sufficient to convince the magistrate that
there is probable cause to believe the accused committed a particular crime
in order for the accused to be bound over for trial. Probable cause is a low
standard and, in most instances, the prosecution will satisfy this standard.
(Probable cause was discussed in Chapter 8.)

Thus, even before the modern advent of discovery in criminal cases, the
defendant had discovery to some extent through the preliminary hearing.
Then (and now, to some extent), the prosecuting attorney was faced with a
dilemma with respect to the defendant’s discovery through the preliminary
hearing. The prosecutor must present a reasonable amount of evidence in
support of probable cause. On the other hand, the prosecutor does not want
to reveal every aspect of the case to the defense because the defense could
then plan a response and perhaps even fabricate one. To the extent that the
defendant is entitled to learn of the evidence by the right of discovery, the
prosecution is at an even greater disadvantage, as it cannot withhold part of
its case at the preliminary hearing.

There are some advantages to the prosecution in presenting as much

evidence as possible at the preliminary hearing. Witnesses may be more
willing to cooperate and testify more truthfully immediately after the crime
has been committed than months later, when the trial may take place. The
events are fresher in the witnesses’ minds at the time of the preliminary
hearing than at the trial, which might be months later. Once the witnesses
have testified under oath at the preliminary hearing, their testimony is set
and may even be used in the event of recalcitrance, absence, sickness, or
death. On the other hand, the prosecutor may wish to present a very strong
case at the preliminary hearing to encourage the defense to enter into plea
negotiations. If the defendant and defense counsel see that the prosecution’s
case is too strong to justify risking a trial, the incentive to plead guilty will
be substantial. Nonetheless, in many cases in which the likelihood of trial is
high, most prosecutors will present as little of the case as necessary to
establish probable cause. The principal reason for this is the desire to
prevent the defense from discovering too much of the case through the
preliminary hearing.

Page 408

Although a preliminary hearing affords the accused an opportunity to

discover evidence in the hands of the prosecution, a preliminary hearing is
not guaranteed in jurisdictions that prosecute by way of indictment rather
than information. Some jurisdictions and the federal court system may not
hold a defendant over for trial unless a grand jury has indicted the
defendant. Accordingly, if the defendant is indicted by a grand jury before
there is a preliminary hearing, the preliminary hearing is superceded by the
grand jury’s determination or is not held at all. The defendant is at a great
disadvantage with respect to the discovery afforded by a preliminary
hearing in an indictment jurisdiction, since he or she is not allowed to be
present during the grand jury proceedings and only the prosecutor is
allowed to present evidence to the grand jurors.
Growth of the Right of Discovery
Although historically the accused had a limited right of discovery through
the preliminary hearing, the argument persisted that this was not sufficient
to enable the defense to prepare a case properly. Eventually, this argument
prevailed and the right of discovery was developed and adopted, in varying
degrees, in all jurisdictions. As stated earlier in this chapter, one of the first
statutes granting the right of discovery to an accused was that adopted by
the federal government in 1946, Rule 16 of the FRCrP, which currently
provides in pertinent part15:

Upon a defendant’s request, the government must disclose to the

defendant, and make available for inspection, copying, or
photographing, all of the following:

1. any relevant written or recorded statement by the defendant if:

the statement is within the government’s possession, custody,

or control; and

the attorney for the government knows—or through due

diligence could know—that the statement exists;

2. the portion of any written record containing the substance of any

relevant oral statement made before or after arrest if the defendant
made the statement in response to interrogation by a person the
defendant knew was a government agent; and

3. the defendant’s recorded testimony before a grand jury relating to

the charged offense.

Rule 16 was followed 11 years later by the United States Supreme Court
decision in the Jencks case.16 The Jencks case was followed within a few
months by the Jencks Act, adopted by Congress to lessen the effect of the
Jencks decision. The Jencks Act deals only with the right of the defendant
to discover statements made by a government witness. The act covers only
statements written by the witness or transcribed at the same time the
statement was made and either signed or adopted by the witness. Moreover,
if there is such a statement, by the terms of the Jencks Act, the defendant is
not entitled to discovery of it “until said witness has testified on direct
examination in the trial of the case.”17 Thus, the effect of the act is to
deprive the defendant of pretrial discovery of recorded or adopted
witnesses’ statements, since they are discoverable only after the witness has
testified on direct examination at trial. Following the Jencks case, a number
of states adopted some right of discovery by the defendant, through either
court decisions or statutes.

Page 409

Jencks, a labor union official, was convicted of violating a federal law by

filing an alleged false affidavit in which he denied that he had ever been a
member of the Communist Party. During his trial, two witnesses working in
connection with the Federal Bureau of Investigation (FBI) testified that they
had observed Jencks engaging in Communist Party activities. Upon cross-
examination, these witnesses admitted that they had made reports to the FBI
about the actions of Jencks. The defense attorney made a motion to the
court requesting that these reports be produced, so that he could inspect
them. The motion was denied by the trial judge on the grounds that there
was no showing that there was any inconsistency between the reports made
to the FBI and the testimony of the witnesses.

After Jencks was convicted, the case was appealed to the United States
Supreme Court on the grounds that Jencks was denied due process because
of the government’s failure to produce the requested reports. The Supreme
Court reversed the conviction and stated that the refusal of the trial court to
order the production of the reports was in error. The Court held that a
defendant in a criminal trial is entitled to inspect all reports in the hands of
the government that touch on witnesses’ testimony.

The broad wording of the majority opinion in the Jencks case seemed to
grant an unlimited right to the defendant in a criminal case to examine
government reports. Criticism of the decision resulted, based on national
security concerns. In fact, in his dissenting opinion in the Jencks case,
Justice Clark stated: “Unless the Congress changes the rule announced by
the Court today, those intelligence agencies of our Government engaged in
law enforcement may as well close up shop, for the Court has opened their
files to the criminal and thus afforded him a Roman holiday for rummaging
through confidential information as well as vital national secrets.”18 A few
months later, Congress passed the Jencks Act, 18 U.S.C. § 3500, which
tempered the effects of the Jencks decision.
Pretrial Discovery
As discovery first developed in criminal cases, it was confined to discovery
at the time of trial. Now, however, those jurisdictions that have considered
the issue have extended the right to allow discovery pretrial. Jurisdictions
differ as to when the right may be exercised. Some jurisdictions permit
discovery within a certain number of days after arraignment or filing of
charges.19 Other jurisdictions allow the defendant to make a discovery
request before arraignment20 or a preliminary hearing.21

The defense invariably will argue that discovery should commence as soon
as possible and before the preliminary hearing. This argument is based upon
the fact that defense counsel has the right to cross-examine prosecution
witnesses during the preliminary hearing and therefore would like to inspect
the statements and other evidence in order to be better prepared. Rule 16 of
the FRCrP makes no mention of the time when discovery may be requested,
which implies that it may be as soon as possible and prior to the filing of an
indictment or information. This rule has served as a model for some states.

Page 410

Matters That May Be Examined

Jurisdictions vary as to what evidence may be examined by the defendant.
A defendant may have the right to examine such items of evidence as a
grand jury transcript, a list of prosecution witnesses, copies of written
statements made by the defendant or others, tapes or memoranda of oral
statements, certain types of official or business documents, scientific or
technical reports, weapons and other physical evidence, fingerprints, and
photographs. Some jurisdictions permit the defendant, or the defendant’s
attorney, to inspect almost every piece of evidence in the hands of the
prosecution or the law enforcement agency involved. Included in the right
of discovery are
 1. statements of the accused, including the right to hear or copy any
recordings made of conversations with the accused;

2. statements of prospective prosecution witnesses;

3. names and addresses of prospective witnesses;

4. names and addresses of certain informants, particularly when probable

cause for the arrest may stem from such informant, or if the informant
was a participant in the crime or a witness thereto;

5. notes and documents made by witnesses, including the peace officer,

used to refresh their memory prior to testifying;

6. notebooks used by the officer during the course of investigating the

case;

7. photographs of the defendant shown to the victim of a crime for

identification purposes;

8. scientific reports, such as crime-laboratory reports;

9. photographs pertaining to the crime; and

10. real evidence collected during the investigation.

Defendant’s Right to Information About

Prospective Witnesses
Defense access to names, addresses, and other information regarding
witnesses and prospective witnesses has been one of the focal points in the
debate over the right of discovery in criminal cases. This is not surprising,
since the release of such information may lead to witness intimidation.
There is no provision in federal law for the defense’s access to witness
information before trial. However, the trend in the states is just the opposite.
Interestingly, in this country and in England, there long existed the practice
of endorsing (listing) the names of witnesses for the prosecution upon the
indictment or information. At least 19 states have enforced statutes
requiring endorsement as a discovery tool since before 1900, and an
additional four states had enforced such statutes by 1939.22 As of August
2018, 29 states require the prosecutor to provide witness lists to the defense
before trial. In addition, 19 states require that the indictment or information
be endorsed with the names of witnesses, or that the identity of the grand
jury witnesses be provided to the defense. Figure 12–1 shows those states
that require witness disclosure by the prosecution to the defense.

Page 411

Table Summary: A table lists the states that require witness

disclosure by the prosecution to the defense. The column headers
are the states, disclose trial witness, and disclose grand jury
witness. The table lists 51 states in the U.S.
Disclose Disclose
Disclose Disclose
Grand Grand
States Trial States Trial
Jury Jury
Witness Witness
Witness Witness
Alabama No No Montana Yes No
Alaska Yes No Nebraska Yes No
Arizona Yes No Nevada Yes Yes
New
Arkansas Yes No Yes Unsure3
Hampshire
California Yes Yes New Jersey Yes No
Colorado Yes Yes New Mexico Yes No
Connecticut No No New York Yes Yes
North
Delaware No No Yes No
Carolina
District of North
No No Yes Yes
Columbia Dakota
Florida Yes Yes1 Ohio Yes No
Georgia Yes N/A Oklahoma Yes Yes
Hawaii Yes No Oregon Yes No
Idaho Yes2 N/A Pennsylvania Yes Yes
 Disclose Disclose
Disclose Disclose
Grand Grand
States Trial States Trial
Jury Jury
Witness Witness
Witness Witness
Illinois Yes No Rhode Island Yes Yes
South
Indiana N/A N/A No No
Carolina
South
Iowa Yes No No No
Dakota
Kansas Yes No Tennessee Yes No
Kentucky No Yes Texas Yes Yes
Louisiana Yes No Utah Yes N/A
Maine Yes N/A Vermont Yes Yes
Maryland Yes Yes Virginia No N/A
Massachusetts Yes Yes Washington Yes No
West
Michigan Yes Yes Yes No
Virginia
Minnesota Yes Yes Wisconsin Yes No
Mississippi Yes No Wyoming No No
Missouri Yes Yes

FIGURE 12–1 States that require witness disclosure by

prosecution to defense.

Page 412

Defendant’s Right to Identity of Informers

The debate over the defendant’s right to discovery is nowhere more heated
than in the area of the identity of informers. As was pointed out in Chapter
3, the right of discovery afforded the defendant has not abolished the
privilege of the law enforcement officer to retain the confidentiality of the
informer’s identity. However, the privilege has been severely restricted. The
courts hold that the disclosure of an informer’s identity is required if it
appears from the evidence that the informer is a material witness on the
issue of the defendant’s guilt or innocence. Failure to disclose the identity
would deny the defendant the right to a fair trial, leading to the dismissal of
the charges against the defendant. The guidelines as to whether an informer
is a material witness are not clearly established. The courts have ruled that,
if an informer participated in the crime or was an eyewitness to the crime,
the informer is a material witness. The burden is on the defendant to prove
the informer’s status as a material witness. This burden is discharged when
the defendant demonstrates a reasonable possibility that the informer whose
identity is sought could give evidence on the issue of the guilt or innocence
of the defendant.

Procedure for Pretrial Discovery by Defendant

Generally, an informal request made by the defense attorney to the
prosecuting attorney to inspect the prosecution’s evidence is sufficient to
obtain permission to do so. This informal request, depending upon the
jurisdiction, may be made orally or in writing.23 In some jurisdictions,
though, the defense must make a formal request for discovery by filing
either a motion or a notice of intent to participate in discovery.24 The
defense may not participate in discovery if the judge determines that it is
simply a “fishing expedition” by the defense in an effort to see what
evidence the prosecution holds in the hopes of benefitting the defense’s
case. Normally, however, the defense attorney simply has to state that the
inspection of the prosecution’s evidence is deemed necessary for the
preparation of the defense. In most instances, the right of discovery is then
placed into operation and the judge issues an order for pretrial discovery.

When the defense requests pretrial discovery, either formally or informally,

the prosecuting attorney generally prefers to be consulted before any
disclosure for examination is made. In this way, the prosecuting attorney
can better control what must be released for examination.
Prosecution’s Right of Discovery
The most significant impediments to prosecution discovery rights are
defendants’ self-incrimination rights and the attorney-client privilege.
Compelling the accused to produce evidence is, to some degree, compelling
the accused to be a witness against himself or herself. Nonetheless, there
has been substantial movement in the direction of allowing prosecution
discovery of the defense case, within certain limits. Generally speaking, the
prosecution may be given reciprocal discovery. Since 1966, Rule 16 of the
FRCrP has provided for some reciprocal discovery. For example, Rule
16(b)(1)(A) provides the following:

If a defendant requests disclosure under Rule 16(a)(1)(E) and the

government complies, then the defendant must permit the government,
upon request, to inspect and to copy or photograph books, papers,
documents, data, photographs, tangible objects, buildings or places, or
copies or portions of any of these items if:

1. the item is within the defendant’s possession, custody, or control;

and

2. the defendant intends to use the item in the defendant’s case-in-

chief at trial.

Such reciprocal discovery was upheld by the United States Supreme Court
in 1975.25 Sections (a)(2) and (b)(2) of Rule 16 limit the right of discovery
by both the defendant and the prosecution—protecting both self-
incrimination rights and attorney-client privileges. Moreover, the
prosecution may demand notice of the defendant’s intention to offer a
defense of alibi (FRCrP 12.1) or insanity (FRCrP 12.2).

Page 413

At the state level, as broader rights of discovery have been granted to the
defendant, the rights of the prosecution to discover aspects of the
defendant’s case have also been broadened. The defendant may be required
to disclose to the prosecution various defenses, such as alibi, self-defense,
insanity, and entrapment. In 1970, the United States Supreme Court upheld
Florida’s rule granting prosecution discovery of an alibi defense.26 When
the defendant must disclose defenses, he or she must also furnish the
prosecution with names of prospective witnesses, as well as other
information that may be requested by the prosecution.
Defendant’s Right to Original
Investigative Notes and Recordings
Once an officer writes a report, he or she may destroy the original notes
upon which the report was based. The departmental policy may even
mandate such destruction of notes. Generally, this is not a problem, since
the majority of courts considering the matter have held that the defendant is
not entitled to discovery of the officer’s original investigative notes.
However, in some instances, courts have ruled otherwise.

In the 1976 case of United States v. Harris,27 the United States Court of
Appeals for the Ninth Circuit held that the FBI must preserve the original
notes taken by agents during interviews with prospective government
witnesses or an accused. The court stated that the preservation of such
evidence was necessary in order to permit the federal courts to play their
proper role in deciding what evidence must be produced pursuant to the
Jencks Act or other applicable law. Further, the court rejected the contention
that the good faith destruction of rough notes in accordance with normal
FBI policy was justifiable. Thus, the court found that notes taken by FBI
agents in interviews with prospective government witnesses or the accused
—as were involved in the Harris case itself—constitute potentially
discoverable materials.

Since the time of the Harris decision, the Supreme Court of the United
States has not addressed the issue, and there is a split of authority in the
federal circuits. There is also a difference of views among the states.
Defendants’ claims that their rights were violated by the destruction of
notes generally claim that the state’s refusal to produce the notes deprived a
defendant of liberty without due process of law in violation of the
Fourteenth Amendment to the United States Constitution. Brady v.
Maryland28 requires the state to disclose to a defendant exculpatory
material in the prosecutor’s possession. Thus, a defendant may claim that
the state’s failure to produce an officer’s original notes was a Brady
violation. In addition, defendants often raise the issue that a specific state
discovery statute was violated because the officer’s notes relating to
statements made by the defendant were not produced. Such claims are
generally evaluated under the standards of Arizona v. Youngblood,29 where
the United States Supreme Court held that the failure of police to preserve
potentially useful evidence was not a denial of due process of law absent
the defendant’s showing of bad faith on the part of the police. The Court
also indicated its unwillingness to read the fundamental fairness
requirement of the Due Process Clause as imposing on police an
undifferentiated and absolute duty to retain and preserve all material that
might be of conceivable evidentiary significance in a particular prosecution.
Thus, when claims of constitutional violations are raised as a result of the
destruction of notes, the state courts, which decide such matters on a case-
by-case basis, will determine if the evidence was exculpatory (Brady) or if
the material has evidentiary significance in the action (Youngblood).

Thus, the law enforcement professional should exercise caution when

deciding whether to destroy original notes, especially when those notes
record a defendant’s or witness’s statements. The same is true of recordings
of interviews after the recording has been transcribed. The problem arises
most frequently when the defendant claims that the officer’s report or
interview transcript is inaccurate. Significantly, even in jurisdictions where
the destruction of interview notes or recordings has been criticized, the
courts have not held the principle applicable to original notes relating to
other matters, such as notes dealing with surveillances. See Figure 12–2 for
a summary of the law in each jurisdiction relating to destruction of officers’
notes.

Page 414

Table Summary: A table lists the states that permit the destruction
of police officers’ notes if incorporated into a report. The column
headers are jurisdiction; permits generally; case by case review for
due process or other const violation or does not permit; undecided.
The table lists 14 states in the U.S. A table (continuation) lists the
states that permit the destruction of police officers’ notes if
incorporated into a report. The column headers are jurisdiction;
permits generally; case by case review for due process or other
 const violation or does not permit; undecided. The table lists 12
states in the U.S. A table (continuation) lists the states that permit
the destruction of police officers’ notes if incorporated into a
report. The column headers are jurisdiction; permits generally; case
by case review for due process or other const violation or does not
permit; undecided. The table lists 15 states in the U.S. A table
(continuation) lists the states that permit the destruction of police
officers’ notes if incorporated into a report. The column headers
are jurisdiction; permits generally; case by case review for due
process or other const violation or does not permit; undecided. The
table lists 10 states in the U.S.
Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit
Waldrop v. State,
859 So.2d 1138
Alabama (2000) (one instance,
cautions might be
brady violation
Emery v. State,
Alaska 2002 WL
1842987 (2002)
State v. Axley,
646 P.2d 268,
Arizona
Ariz., 1982.
(MG)
Not
Arkansas decided-no
case/statues
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit

People v.
Von Villas
(1992) 10
Cal. App.
4th 201,
248;

People v.
Garcia
(1986) 183
California Cal.
App.3d
335, 348-
350; 81
Ops. Cal.
Atty. Gen.
397, 1998
WL
911746
(Cal.
A.G.)1
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit

People v.
Morgan, 681
P.2d 970
(1984);

People v.
Colorado Erickson

883 P.2d 511,

Colo. App.,
1994. OK if not
constitutionally
material

State v.
Vessichio, 500
A.2d 1311

Conn., 1985

State v. Zayas,
Connecticut 489 A.2d 380,
Conn. App.,
1985 (HAVE
Jenks act like
discovery state,
in this case OK,
but “cannot
condone”
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit
Court must perform
Delaware
a balancing test.

U.S. v. Jackson,
450 A.2d 419
District of
Columbia D.C., 1982.
(Not permit
MG)

Not decided
Florida
MG

Mitchell v.
State, 529
S.E.2d 169
Georgia Ga. App.,
2000.
(Permits,
MG)
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit

State v. Maluia,
539 P.2d 1200.

Hawaii 1975.
case by case,
have statute like
Hawaii
jenks act, but
notes
incorporated are
usually not
statements
under Jenks

Not
decided-no
case/statutes
Idaho MG

Page 415

People v.
Wilson, 626
Illinois N.E.2d 1282
(1993)(MG
TOO)
Pmt- Albrecht v.
State, 737 N.E. 2d
719 (2000), case by
Indiana
case, bad only if in
bad faith or deprive
of right
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit
State v. Bowers,
Iowa 661 N.W. 2d
536, 543 (2003)

Doesn’t permit-
St. v. Eubanks,
577 P.2d 1208
(1978)
Kansas
MG Added
State v. Walters,
655 P.2d 947,
Kan. App.,1982

Not
decided- no
Kentucky
cases/statues
(MG)
Not
decided- no
Louisiana
cases/statues
(MG)
Not
decided- no
Maine
cases/statues
(MG)
Not
decided- no
Maryland
cases/statues
(MG)
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit

Com. v.
Collazo, 34
Mass. App.
Ct. 79, 607
N.E.2d 418
(1993)

Massachusetts Could not

find this
case**

Com. v.
Pina 430
Mass. 66
(1999)
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit

Pmt-People v.
Synder, 2001
WL 672873,
Mich. App.;
People v.
Cervante 1998
WL 1990401,
Mich. App
Michigan
People v.
Petrella

336 N.W.2d 761

[Link].,1983

Apr (added by
MG, unsure)

State v. Wilson,
535 N.W. 2d
Minnesota
597 (1995)
(MG)
Not decided
Mississippi
(MG)
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit

Pmt- St. v.
Burke, 809
S.W. 2d
391 (1990)

State v.
Missouri Buss, 768 Page 416
S.W.2d
197 (Mo.
App. E.D.
1989).
(MG
Added)

Pmt- St. v.
Wright, 17 P.3d
Montana
982 (2000)
(MG)

NMG: State v.
Davlin, 639
N.W.2d 631
(2002)
Nebraska
St. v. Parsons,
412 N.W. 2d
480(1987) (case
by case)
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit
Haynes v. State, 739
P.2d 497, Nev.,1987.
Nevada One instance;
reverse if establish
prejudice (MG)

St. v.
Coolidge,
260 A.2d
547 (1969)
(MG)

Coolidge v.
New
New
Hampshire,
Hampshire
403 U.S.
443, 91 S.
Ct. 2022,
29 L. Ed.
2d 564
(1971) is
the most
recent case

New Jersey Not Permitted.

Not decided
New Mexico
(MG)
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit

People v.
Butler, 596
N.Y.S.2d 276,
N.Y.A.D. 4
Dept., 1993
(MG not
New York permit)

Pmt- People v.
Jarvis, 249
A.D.2d 417
(1998) – One
case, ok if no
prejudice

State v. Nance,
579 S.E.2d 456

(N.C. App.,
2003) One
North instance, not
Carolina matter unless
show destroy in
bad faith and
would have
been
exculpatory

Not decided
North Dakota
(MG)
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit

State v.
Drake
1993 WL
437602

Not
Ohio
reported in
N.E.2d

Ohio App.
8 Dist.,
1993

Not decided
Oklahoma
(MG)

State v.
Armstrong,
692 P.2d
Oregon 699

(Or. App.
1984) MG

Pmt- Com. v.
McElroy, 665
Pennsylvania
A.2d 813, 819
(1995)
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit

State v. Garcia,
643 A.2d 180

R.I., 1994 (state

Rhode Island fire investigator, Not decided
violate due
process or
discovery rule)

Not decided
Exempt from (MG)
South
disclosure except by
Carolina
court order Page 417

Not decided
South Dakota
(MG)
Not decided
Tennessee
(MG)
Does not permit.
Instead, requires the
record(s) to be kept
Texas
for certain periods of
time depending on
the offense.
Not decided
Utah
(MG)
Pmt- St. v.
Vermont Gibney, 825
A.2d 32 (2003)
 Case by case review
for due process or
Permits
Jurisdiction other const Undecided
Generally
violation or does
not permit
Not decided
Virginia
(MG)
Not decided
Washington
(MG)
Not decided
West Virginia
(MG)
Pmt- St. v.
Noble, 246 Wis.
Wisconsin
2d 533 (2001)
(MG AGREE)
Not decided
Wyoming
(MG)

FIGURE 12–2 States that permit destruction of police officer’s

notes if incorporated into a report
Page 418

Review and Application

Summary
1. Documents may be classified as (1) public or (2) private. Public
documents may be further categorized as (1) laws; (2) judicial records;
(3) other official documents, such as records or driver’s licenses,
marriage applications, and birth certificates; and (4) public records of
private writings, such as records of deeds and mortgages. Private
documents are the private writings or recordings of individuals, such
as letters, memoranda, answering machine messages, suicide notes,
and wills.

2. The situations in which secondary evidence of the contents of a writing

may be introduced is when the original writing (1) has been lost or
destroyed; (2) is unobtainable by any available judicial process or
procedure; (3) is in the possession of an adverse party and, after a
notice to produce it, the adverse party fails to do so; (4) is in the
custody of a public officer; (5) relates to a collateral matter; and (6) is
voluminous and cannot be examined without a great loss of time, and a
summary of the writing’s contents will suffice.

3. The three foundational elements that must be shown before secondary

evidence is admitted are (1) that there has been a writing in existence;
(2) that the secondary evidence is a genuine copy of the original or
accurately relates the contents of the original; and (3) the reason or
justification that the secondary evidence is being offered instead of the
original.

4. The Fifth Amendment privilege against self-incrimination allows the

defendant lawfully to refuse to comply with a subpoena duces tecum
and withhold a document, if such document would incriminate the
defendant.
 5. Under FRCrP 16, the defendant can discover from the prosecution (1)
any written statements, recordings, or transcriptions of oral statements
made by the defendant possessed by the prosecution; (2) the
defendant’s prior criminal record; and (3) documents, photographs,
tangible objects, results of physical and mental examinations, and test
reports possessed by the prosecution that the prosecution intends to use
as evidence or that the court deems material to the defendant’s trial
preparation. If any of the materials specified in item 3 are granted to
the defendant, the prosecution is granted reciprocal discovery.

6. The Jencks Act covers only statements from a government witness

written by that witness or transcribed at the same time the statement
was made and either signed or adopted by the witness.

7. The matters that may be subject to discovery by the defendant include

such items of evidence as a grand jury transcript, a list of prosecution
witnesses, copies of written statements made by the defendant or
others, tapes or memoranda of oral statements, certain types of official
or business documents, scientific or technical reports, weapons and
other physical evidence, fingerprints, and photographs. Some
jurisdictions permit the defendant, or the defendant’s attorney, to
inspect almost every piece of evidence in the hands of the prosecution
or the law enforcement agency involved.

Page 419

8. The defendant may be required to disclose to the prosecution various

defenses, such as alibi, self-defense, insanity, and entrapment.

Key Terms
authentication 398

laying the foundation 399

best evidence rule 399

 duplicate 399

primary evidence 400

secondary evidence 400

notice to produce 402

subpoena duces tecum 402

collateral matter 402

certified copy 402

exemplified copy 403

voluminous records rule 403

original document 403

inscribed chattel 403

discovery 404

exculpatory evidence 404

Brady material 405

preliminary hearing 407

Jencks Act 408

Questions for Review

1. What are the two classifications of documents and each of their
categories?

2. What are the five situations in which secondary evidence of the

contents of a writing may be introduced?
 3. What are the three foundational elements that must be shown before
secondary evidence is admitted?

4. When is a defendant not required to comply with a subpoena duces

tecum and produce a document in his or her possession?

5. What are the three types of discovery the defendant can obtain from
the prosecution under FRCrP 16 and which type is granted reciprocal
discovery?

6. What statements are covered by the Jencks Act?

7. What range of matters may be subject to discovery by the defendant in

a criminal case?

8. What defenses may the accused be required to disclose to the

prosecution prior to trial?

Thinking Critically About Evidence

1. An officer arrests the defendant for possession of a stolen vehicle. At
the preliminary hearing, the arresting officer assists the prosecutor. As
potential witnesses, the prosecution has the owner of the vehicle who
reported it stolen, a witness who saw the defendant near the car before
it was stolen, the assisting officer, and the officer’s partner who
participated in the arrest. Keeping in mind the purpose of the
preliminary hearing, whom should the prosecutor put on the witness
stand and why?

Page 420

Workplace Applications
1. An officer serves a search warrant at an illegal gambling establishment
and finds photocopies of a pay/owe sheet; photographs of patrons
gambling; and a computer containing files of hundreds of pages of
bank account transactions, phone numbers, and correspondence.
 Keeping the best evidence rule and primary and secondary evidence in
mind, write an explanation of how each item could be admitted into
evidence.

2. The prosecutor tells several officers involved in a drug bust to give her
“all notes and reports” of the incident that they possess. One of the
officers interviewed a witness and recorded it but did not take any
notes or include anything the witness said in a report, as the witness
offered no useful information. Is the officer required to turn the
recording over to the prosecutor, so that she can give it to the defense?
Explain.

Ethical Dilemma
1. An officer retires and moves to a state far from the area where he
worked. Back in his home city, a defendant in a spousal abuse case is
requesting discovery from the prosecution. The retired officer’s partner
knows that the retired officer kept a notebook that had notes from
every call that resulted in an arrest, including the arrest of this
defendant. The working partner believes the notes are not significant to
the case. Telling the prosecutor about the notes means that the retired
officer will have to search them out and produce them. Should the
working partner tell the prosecutor about the notebook’s existence?

Endnotes
1. 241 F.R.D. 534 (D. Md. 2007).

2. Fed. R. Evid. 1001(4), advisory committee note (original note), the

Rule is now 1001(e).

3. See, e.g., State v. Williams, 797 S.W.2d 734 (Mo. Ct. App. 1990).

4. Lawson v. State, 803 N.E.2d 237 (Int. App. 2004), citing Charles T.
McCormick, Evidence § 234 (4th ed. 1992).

5. 454 F.2d 809 (5th Cir. 1972).

 6. People v. Riser, 305 P.2d 1 (Cal.1956) (production of prosecution
witness statements during trial). See also People v. Lopez, 384 P.2d 16
(Cal.1963) (pretrial discovery of government witness identity).

7. American Bar Ass’n, Project on Criminal Justice Standards, Standards

Relating to Discovery and Procedure Before Trial (Approved Draft,
1970).

8. C. Clennon, Pre-Trial Discovery of Witness Lists: A Modest Proposal

to Improve the Administration of Criminal Justice in the Superior
Court of the District of Columbia, 38 Cath. U.L. Rev. 641, 651–52
nn.57–59 (1989).

9. 373 U.S. 83 (1963).

10. 18 U.S.C. § 3500.

11. 373 U.S. 83 (1963).

12. Id. at 87.

13. C. Clennon, Pre-Trial Discovery of Witness Lists: A Modest Proposal

to Improve the Administration of Criminal Justice in the Superior
Court of the District of Columbia, 38 Cath. U.L. Rev. 641, 656 (1989),
citing United States v. Bagley, 473 U.S. 667, 682 (1985) (quoting
Strickland v. Washington, 466 U.S. 668, 694 (1984)).

14. 540 U.S. 668 (2004).

15. Fed. R. Crim. P. 16 (a)(1)(B).

16. Jencks v. United States, 353 U.S. 657 (1957).

17. 18 U.S.C. § 3500 (a).

18. 353 U.S. at 681–82.

Page 421
 19. See, e.g., Fla. Crim. P. Rule 3. 220 (2004). R.I. Super. Ct. R. Crim. P.
Rule 16(g)(1) (2004). Tenn. Davidson County Logal Rule; Rhode
Island Superior Ct. Rules of Crim. Pro.; Fla. R. Crim. P.

20. N.J. R. Crim. Rule 3:13–3 (2001).

21. Minn. R. Crim. P. Rule 9.01 (2004).

22. C. Clennon, Pre-Trial Discovery of Witness Lists: A Modest Proposal

to Improve the Administration of Criminal Justice in the Superior
Court of the District of Columbia, 38 Cath. U.L. Rev. 641, 657–58
nn.96–98 (1989).

23. E.g., R.I. Super. R. Crim. P. 16; N.J. Court Rules, R. 3:13–3.

24. E.g., Fla. R. Crim. P. 3.220; Va. Sup. Ct. R 3A:11.

25. United States v. Nobles, 422 U.S. 225 (1975).

26. Williams v. Florida, 399 U.S. 78 (1970).

27. 543 F.2d 1247 (9th Cir. 1976).

28. 373 U.S. 83 (1963).

29. 488 U.S. 51 (1988).

Design Element: ©Ingram Publishing

Page 422

13

Physical Evidence

Portland Press Herald/Getty Images

Page 423

Chapter Outline

What Is Physical Evidence?

Physical Evidence Must Be Relevant

Laying Foundation for Physical Evidence

 Introducing Physical Evidence

Attacking Physical Evidence

Sources of Physical Evidence

Kinds of Physical Evidence

Chain of Custody

Securing the Crime Scene and Collecting Physical Evidence

Connecting Objects with Issues at Trial: Chain of Custody, or Possession

Identification by Custody and Control

Identification by Proof of Chain of Custody

Marking Objects for Identification

Storage of Physical Evidence

Delivering Physical Evidence

Preparation of Physical Evidence for Use in Court

Gruesome Objects

Photographs of the Crime Scene or Corpses

Videos of the Crime Scene or Corpses

Physical Objects Not Produced in Court

Viewing of the Crime Scene by the Jury

Application Case

Review and Application

Chapter Objectives
This chapter examines the law of evidence as it relates to the collection of
physical evidence. After reading this chapter, you will be able to:

Name the five examples of how authentication can be accomplished.

Identify the four general categories of physical evidence.

List the order and persons in a typical chain of custody.

State the three methods an officer can use to identify positively the object in
court as the one that the officer found at the crime scene.

Identify the information that should be placed on a typical tag.

Describe how items of evidence should be packaged for long-term storage in

an evidence locker.

Explain the balancing test of FRE 403 for admitting gruesome objects into
evidence.
Page 424

What Is Physical Evidence?

As previous chapters have shown, there are numerous kinds of evidence.
One kind of evidence is physical evidence, or material objects. In a criminal
trial, physical evidence may be a gun, a knife, bloodstained clothing, a
latent fingerprint, or a photograph. Two forms of physical evidence are
“demonstrative” and “real evidence.” Real evidence is the object itself.
Demonstrative evidence is a representation of the real thing: a copy, an
imitation, a model, or a reproduction. For example, the gun used in a
shooting is real evidence, while another gun of the same manufacture and
model is demonstrative evidence. Another example of demonstrative
evidence is a diagram of the scene of a crime, drawn in the courtroom by an
investigating officer to help illustrate his testimony describing the scene.
The distinction, however, is usually just academic, as the terms “physical
evidence,” “real evidence,” and “demonstrative evidence” are used
interchangeably.

Once physical evidence has been identified by a witness, authenticated, and

introduced into evidence as an exhibit, the physical evidence speaks for
itself. The jury does not have to rely upon the testimony of a witness to
explain what was found and to provide a description. The jurors can usually
hold, feel, inspect, and examine the object and see for themselves the
information that it contains.

Physical Evidence Must Be Relevant

For physical evidence to be admissible, it must have some connection to the
facts of the case; it must be relevant to the issues of the trial, and it must
assist in proving the facts in dispute. FRE 401 defines relevant evidence as
evidence that “has any tendency to make a fact more or less probable than it
would be without the evidence; and … the fact is of consequence in
determining the action.” If an object is a part of the transaction of the crime
and assists in explaining and unfolding the story of the case, the object will
be relevant and may be introduced into evidence and shown to the jury.

Generally, only relevant evidence is admissible; irrelevant evidence is

inadmissible. However, FRE 403 states that even relevant evidence can be
excluded if it is unduly prejudicial, confuses the issues, misleads the jury, or
is a waste of the court’s time. Essentially, the trial court balances the worth
of the evidence to prove or disprove some fact against its potential for
unfair impact on the jury. The court can exclude the evidence if its
prejudicial or distracting effect substantially outweighs its probative value.

Laying Foundation for Physical Evidence

Before any physical object may be admitted in evidence and shown to the
jury, enough proof must be presented to satisfy FRE 901 requirements that
the object is what its proponent claims it to be. This authentication, or
identification, process is called laying the foundation for the object. This
can be accomplished in a number of ways, for example, through the
following:

1. testimony of a witness who has firsthand knowledge;

2. a nonexpert who was familiar with a person’s handwriting and did not
gain the knowledge of the handwriting for the purpose of the litigation,
such as a spouse or roommate;

Page 425

3. allowing the jury or an expert to compare the object to an example and

decide its authenticity;

4. distinctive characteristics and surrounding circumstances, such as

sending a bill to an address and receiving payment from the bill; or

5. voice identification that can be learned firsthand or through a

mechanical or electronic transmission, such as a television or digital
answering device.
Some evidence is self-authenticating and does not require authentication to
be admitted into court. For example, FRE 902 lists certified copies of public
records, domestic public documents under seal, foreign public documents,
and official publications, such as books, pamphlets, newspapers, and
periodicals, as self-authenticating evidence. Although these documents are
self-authenticating, a witness may be called to produce them at trial.

The burden of authentication of physical evidence in a criminal trial most

often falls upon the law enforcement professional because he or she
normally discovers the object while investigating the crime and knows how
the object connects the accused to the crime. The officer may be aware of
the object’s connection to the case because it was removed from the
accused at the time of the arrest or taken from the crime scene. Other
witnesses besides the officer may have to assist in the authentication of the
object, as one officer may not have knowledge of all the connecting facts.
For example, if the accused were charged with robbing a man of his wallet
and money, and an officer arrested the accused and removed a wallet from
his possession, the officer would be able to connect the wallet to the
accused. However, the victim of the robbery would have to identify the
wallet as the one taken in the robbery in order to connect it with the crime.

Introducing Physical Evidence

Using the example of the robbery case, the prosecutor needs to prove that
the wallet is connected with the facts of the case in order to have it admitted
into evidence. The victim could testify that there was a wallet, and the
arresting officer could relate the facts about the arrest and the discovery of
the wallet in the possession of the accused, all without the prosecutor
introducing the wallet into evidence. However, as evidence, the wallet
speaks for itself. It shows the jury that the object is relevant and authentic.
The evidence also emphasizes the facts of the case and substantiates the
oral testimony of the witnesses. The trial judge will send the physical
evidence to the jury room for examination during the deliberation to assist
the jury in remembering the facts as they were presented during the trial.

There is no rule requiring the prosecutor to call witnesses in any particular

sequence. Good lawyers, however, try to present witnesses in a logical
order. In the wallet robbery example, the prosecutor might first call the
victim of the robbery to the stand to establish the fact that the robbery took
place. The victim could also testify to elements of the crime, such as the
taking of the wallet through means of force or fear. The following steps are
usually taken in order to get the wallet, or any other object, introduced into
evidence. The prosecutor will mark the wallet in numeric order for
identification purposes, such as “People’s Exhibit Number 1, for
Identification.” Normally, the prosecutor’s exhibits are marked with
numbers, while the defense’s exhibits are marked with letters.

Page 426

Next, the prosecutor will lay the foundation for the witness to identify the
wallet by giving it to the witness and asking if the witness recognizes it as
being the same wallet that was taken during the robbery. The prosecutor
will then offer the wallet to the judge as evidence and request that the judge
accept it into evidence. At this time, the opposing counsel may raise any
legal objections to the introduction of the wallet, and the prosecutor will
respond. Ultimately, the judge will rule on the objections and either sustain
or overrule them and receive the wallet into evidence. Once the evidence is
admitted, it can be considered by the jury.

In theory, the jury must disregard an object until it is admitted into

evidence. However, this is not easily accomplished because the
authentication of the object usually takes place in the presence of the jury. If
the object is not admitted, it is almost impossible for jurors to erase the
memory of the object from their minds. Once the object has been
introduced, the jurors may consider it with respect to the differing
viewpoints in the case and give the evidence the weight they think it
deserves. They may examine and inspect it at the time it is introduced, and
the attorneys may refer to it during their closing arguments.

Attacking Physical Evidence

Due to the great impact physical evidence has on a jury, a defense attorney
will often do everything possible to prevent an object from being introduced
as evidence. The defense attorney might argue that the object is unduly
prejudicial to the defendant, as with gruesome photographs, or that the
person collecting the object was prejudiced toward the defendant and
planted the evidence. The attorney can try to show that the object is not
relevant and has not been positively connected to the case. Or the defense
might try to prove that the officer cannot positively identify the object as
the same object that was recovered at the crime scene. The defense attorney
might try to prove that the object was tampered with, collected by an
incompetent investigator, or contaminated in such a way that the object can
no longer prove the fact intended. Often, when the defense counsel’s
objections are successful, it is due to improper handling of the investigation
of the crime, which includes the collection, identification, and preservation
of the object. Before discussing the investigation of a crime, it is important
to identify some of the sources of physical evidence, as well as some of the
kinds of objects that may be considered as a part of a crime, or transaction,
and thereby be relevant to the issues of a case.
Sources of Physical Evidence
The law enforcement officer, or investigator, or criminalist can find
physical evidence in many places. Physical evidence can be used to
determine what crime has been committed, to lead to other evidence, to
enable the officer to reconstruct the crime, and to assist in convicting the
perpetrator. The most logical and lucrative place to find physical evidence
is at the crime scene. The perpetrator’s person, vehicle, home, place of
business, and base of operations are prime sources of evidence. Even a
search of the areas surrounding these places, or along a getaway route,
could turn up discarded evidence.

Page 427

Kinds of Physical Evidence

It is impossible to list all the kinds of physical evidence that may be
considered to be a part of the transaction of a crime, because there can be as
many kinds as there are objects in existence. However, kinds of physical
evidence, as a matter of convenience, may be classified under four general
categories: fruits of a crime, instrumentalities used in committing the crime,
contraband, and evidence. The fruit of a crime is property that is seizable by
a police officer, such as stolen or embezzled property. An instrumentality of
a crime is property that is seizable by a police officer that was used as the
means of committing a crime, such as a gun. Contraband is any item that is
illegal for a person to possess, such as an illegally sawed-off shotgun or an
illegal drug, such as crack cocaine. Evidence of a crime is any object that
demonstrates that a crime has been committed. Any object discovered
during an investigation that falls within one of these categories should be
admitted in evidence with little difficulty, since it is connected with the
crime and relevant. The only problem that may arise is the proper
authentication of the object. It is in this matter that collection, identification,
and preservation play a paramount role.
Chain of Custody
When the prosecutor seeks to introduce an object into evidence, the burden
is on the government to prove that the object in court is the same item that
was collected by the officer out on the street and that it is in the same
condition, or substantially the same condition, as when it was collected. The
prosecutor needs to obtain testimony that traces who has had control of the
object and where the object has been since it was collected. The persons
involved in the possession of the object usually include the collecting
officer, the transport officer (who takes it to the crime laboratory for
analysis or directly to the police evidence locker for booking), crime lab
personnel, the custodian of the records of the evidence locker, and the
officer who takes the object to court. Many departments simplify the
process by requiring that the collecting officer transport the object to the
crime laboratory or book it into evidence. The same officer then retrieves
the object and takes it to court. The object will usually have a chronological
log attached to it that must be filled out by everyone who handles the
object, including laboratory technicians, booking officers, investigators, and
prosecutors.

FYI

It may be impossible to show that evidence is in exactly the same condition

as when it was discovered. Sometimes, as with drugs that have been
subjected to testing, the evidence might be diminished or otherwise altered
in some manner. Therefore, the party offering the evidence is permitted to
show that it is in “substantially” the same condition as when it was found.

Securing the Crime Scene and Collecting Physical

Evidence
The fact-finding activities that take place at the scene of a crime
immediately after the crime has been reported to or discovered by police
officers are all part of what is called the preliminary investigation. In most
cases, many of these initial activities are undertaken by uniformed patrol
officers from the police agency responding to the call for assistance.

Page 428

One of the first things a new officer learns is the necessity of protecting the
integrity of a crime scene. Upon arrival at a crime scene, the officer should
quickly determine if anyone is injured or needs medical treatment and, if so,
summon the necessary health professionals. Next, the officer should survey
the crime scene, quickly determine whom to interview, and move
nonessential individuals out of the area. As soon as possible, the crime
scene area should be cordoned off or otherwise closed to nonessential
individuals. This will keep contamination of the crime scene to a minimum.
The reality at many crime scenes is that some contamination of the scene is
unavoidable, especially in cases where a crowd gathers before the officer
arrives, or when multiple people are injured. The officer must exercise good
judgment to protect as much of the scene as possible. Improper protection
of a crime scene may result in evidence becoming contaminated or even
destroyed and may lead to the exclusion of key objects in a trial or affect
the worth of the evidence in the eyes of the jury.

Each type of physical evidence, whether an intact object, pieces of an

object, blood, glass, liquids, or gasses, must be collected, marked or tagged,
packaged, transported, and stored properly to be later admitted into
evidence in court. It is beyond the scope of this text to discuss in detail the
specific methods for securing and processing the crime scene and any
evidence found there. Those techniques are taught in other police science
courses, such as crime scene investigation and criminal investigation
courses. This chapter deals with the general principles that law enforcement
professionals must follow to preserve the integrity of any evidence for use
at trial.

In small police departments, the officer may be the one who takes
photographs and acts as the primary investigative agent. The local police
chief will call for a forensic or other type of investigative specialist only if
he or she feels the circumstances warrant their involvement. In most urban
departments, a photographer or videographer and a criminalist or forensic
specialist will be part of any major crime scene investigation. In either case,
the next phase of the investigation will be a detailed search of the scene and
any associated places and persons to collect and analyze whatever evidence
can be found. At this stage, a number of different activities are conducted,
including the lifting of latent fingerprints, the taking of blood samples, the
plotting of bullet trajectories, the notation of gun powder patterns, the
analysis of wound patterns, and the gathering of materials upon which trace
evidence may have been deposited.

In many instances, investigators and criminalists will process key pieces of

evidence taken by them directly from the crime scene. In other cases, the
patrol officer will be responsible for collecting and processing all crime
scene evidence. Regardless of who collects the evidence, the individual
removing the item from the scene of the crime must be able to present
satisfactory proof at the time of trial that the object has a connection to the
case and to the specific crime for which the accused is being tried. Thus, for
example, the item will be marked in some distinctive way, with initials and
date, so that the person collecting it can point to how he or she knows this is
the item collected. At trial, the officer must be able to identify positively the
object as the one that he or she found at the scene. The officer must also be
able to establish that the object has not been tampered with or altered in any
way that might disqualify it as evidence. Tainted evidence, even if admitted
in court, may lose all or some of its evidentiary value.
Page 429

Connecting Objects with Issues at

Trial: Chain of Custody, or
Possession
Objects that constitute fruits, instrumentalities, or evidence of the crime or
are contraband may be introduced in evidence and exhibited to the jury if it
is proven that such objects offered as evidence relate to the crime charged.
To do this, someone must be in a position to testify that the object was
connected with the crime or found at the scene. The officer who
investigated the case may or may not be able to do this, depending upon
certain circumstances, because the officer can testify only to his or her own
actions and observations. The officer can describe the crime scene only as it
was upon his or her arrival. Seldom is the officer the first one at a crime
scene. Thus, proof that a particular object was a part of the scene may
depend on the testimony of some other witness. It is vital that the officer
obtain the names, addresses, and phone numbers of those present. The
officer must also ascertain whether the scene is in its original state or
whether anything has been removed, tampered with, or handled. The person
who originally discovered the crime scene can be a very important link in
the chain of proof showing that a particular object has a connection with the
crime.

The typical record of chain of custody, or possession, includes the person

who initially observed the object, the possession of the object by the officer,
transportation to the laboratory, possession by laboratory technicians,
retrieval by another officer and transportation to police storage facilities,
and the final transport to court. If there is a break in the chain of custody,
the claim of proof that the item is in the same condition as when it was
found at the crime scene may be compromised, and the item may no longer
be admissible in evidence. A log is usually attached to the item, and each
person who handles the item must record his or her name, department, and
date of handling to help ensure that the chain of custody is kept intact.

Maintaining the chain of custody is particularly important when the object

is one that is not unique or when questions could be raised about changes in
the condition of the object, unique or not. Chain of custody must be
carefully maintained for common, fungible objects (things that are not
immediately identifiable when mixed with like items), such as “a plastic
bag containing one ounce of a white, powdery substance.”

On the other hand, an officer who finds a particular weapon at the scene of
a homicide may secure the weapon by tagging it and sealing it in a plastic
evidence bag. This will make the particular gun identifiable, even though
thousands of guns of the same make and model were manufactured. If the
defendant were to claim that someone altered the condition of the gun from
the time it was collected by the officer to the time it was delivered in court,
then proof of an uninterrupted chain of custody could be critical for the
admission of the gun into evidence.

To ensure admissibility at trial, three procedures may be used to identify an

object positively:

1. The officer may keep the object in his or her complete and exclusive
custody and control from the time it was found until it is presented in
court.

2. The officer may maintain a complete and accurate record of the chain
of custody.

3. The officer may tag or mark the object in some distinctive manner.

Page 430

Identification by Custody and Control

One of the most effective means by which the officer can identify an object
to be introduced in evidence is for the officer to keep the object in his or her
personal possession, or exclusive control, from the time the officer picks it
up at the crime scene until he or she produces it in court. Realistically, this
is impractical for a number of reasons. First, it is virtually impossible for an
officer to maintain control of many objects. There simply are not enough
storage facilities available. Second, and probably most important, the object
may require examination or analysis by experts. Finally, exclusive control is
also impractical because of the right of discovery by the defendant. This
right gives the defendant the privilege of reviewing the physical evidence
that may be introduced during trial. Consequently, the officer may lose, or
at least be required to share, control of objects during this review by the
defendant or his or her counsel.

Although there may be instances when the officer is not required to release
physical evidence to anyone else, some consideration should be given to
what is entailed in complete custody and control of objects. Obviously,
complete custody and control does not mean that the officer must carry the
object at all times, but it does mean that, from the time the officer picks it
up at the crime scene until it is produced in court, the object must be
continually under his or her exclusive control. In other words, after picking
up the object at the scene of the crime, the officer must transport it to the
station or to another place where the officer will store it, and it must be kept
where no one else has the opportunity to handle the object outside the
officer’s presence. This necessitates a locker, or cabinet, to which only the
officer has access. Complete custody and control further implies that, if the
object is to be viewed or examined by another, the officer must be present.
This is a burdensome system of identification.

The following is a sample transcript of an officer identifying an object by

means of exclusive custody and control:

1. Prosecutor: Officer Smith, did you find any items at the crime scene?

2. Officer Smith: Yes, I found a one-page, typed letter lying by the body.

3. Prosecutor: What did you do with the letter?

4. Officer Smith: After the videographer and photographer both finished

recording the location of the object, and the criminalist failed to find
 any latent prints on the letter, I personally transported it to the crime
lab to have the type print analyzed.

5. Prosecutor: Whom did you leave the letter with at the crime lab?

6. Officer Smith: Well, I didn’t really leave it with anyone. I personally

took it to an analyst named John Roe and stood by for an hour while he
analyzed the letter.

7. Prosecutor: Did the letter ever leave your sight?

8. Officer Smith: No, Mr. Roe let me watch the entire analysis process,
which is quite interesting, and then I took the letter back, sealed it in a
manila envelope, and took it home.

9. Prosecutor: What do you mean by “you took it home”?

10. Officer Smith: Well, it was the end of my shift, and my lieutenant said
that the guy who was arrested for the crime would have his
preliminary hearing in a few days, so he said I could hold on to the
letter until then, provided that I didn’t lose exclusive control of the
letter. So, I took it home, locked it in my wall safe hidden behind a
picture in my living room, and set my burglar alarm anytime I left the
house.

Page 431

11. Prosecutor: Does anyone else have access to the wall safe in your
home?

12. Officer Smith: No, I live alone, and I have never given the safe
combination to anyone else.

13. Prosecutor: Did you ever take it out of the safe before today?

14. Officer Smith: Yes, I took it out at your request yesterday and took it
to the defense counsel’s office to show it to him.

15. Prosecutor: Did you let it out of your sight at that time?
 16. Officer Smith: No, I was with the letter at all times.

17. Prosecutor: Where did you take the letter next?

18. Officer Smith: Back home to my safe, where it remained until I

brought it to court today.

19. Prosecutor: Officer Smith, can you identify this object marked
People’s Exhibit 1 for identification?

20. Officer Smith: Yes, it is the same letter that I found at the crime
scene.

Identification by Proof of Chain of Custody

Some objects found at the crime scene by an officer, by their very nature,
must pass through the hands of others besides the officer under
circumstances in which the officer cannot maintain custody and control.
This is particularly true when an object must be examined by an expert in a
crime laboratory for an extended period of time. For example, a criminalist
who extracts DNA samples from a bloodstain collected at a crime scene
may require a number of days of possession of the stain before sending the
samples off to another crime lab for comparison and analysis. In such a
circumstance, the officer loses complete custody and control of the object.
When this takes place, the officer must know to whom the object was
released and the purpose for which it was released. In other words, the
officer must maintain a record of the chain of possession.

Proof of chain of custody, or possession, specifically means the knowledge,

or accounting, of each person who has come into possession of a physical
object found at a crime scene, from the time it was discovered until it is
presented in court. Such an accounting allows the jury to be sure that the
object is what it purports to be and has not been altered or tampered with.
This accounting is important for two basic reasons: first, to establish that
the object presented in court is the one that was found at the scene and is
thus a part of the transaction and, second, to establish that the object
examined and analyzed by the expert was the one found in connection with
the crime and that it was not altered or tampered with between being found
and being analyzed. If this proof is not available, the object, as well as the
expert’s analysis, may be excluded from evidence.

As an example of how the doctrine of chain of possession works and how it

can be most important to the prosecution of a case, assume that an officer,
Officer A, discovers a knife on a suspect in a murder case. On this knife is a
stain that is believed to be blood. Officer A wants the stain examined by a
laboratory expert to determine whether the stain is blood, whether it is of
human origin, and the blood type.

Page 432

Officer A gives the knife to Officer B to take to the police station, where it
is to be sent to the crime laboratory. On arrival at the station, Officer B
finds that Officer C is going to the crime laboratory with some other
physical evidence, so Officer B sends the knife with Officer C. Officer C
takes the knife to the laboratory and turns it over to Clerk D. Clerk D gives
the knife to Expert E, who makes a scientific examination of the stains on
the knife. Expert E concludes from examination that the brownish stains are
blood and are of human origin. He also finds that the blood is of the AB
grouping, which is a rare type and is the same type as that of the murder
victim. The knife and the analysis of the expert become very important to
the prosecution of the suspect. In the meantime, Officer A asks Officer F,
who is going to the laboratory, to pick up the knife and return it to the
station. Officer F picks up the knife, returns it to the station, and places the
knife in the evidence room until the time of the trial.

On the day of the trial, Officer A gets the knife from the evidence room and
takes it to court. There may be something distinctive about this knife that
enables Officer A to identify it positively as the one he took from the
suspect, even though it has been out of his possession. But how can Officer
A positively testify in a convincing manner that the stains that were on the
knife when it was taken from the suspect are the same ones examined by
the expert? Officer A cannot do so because the knife has gone through
several hands. It cannot be proven that someone did not use the knife for
some purpose between the time it was found and the time it was examined,
or that the blood examined was the blood that was on the knife originally.
Since this proof is not available, the knife, as well as the analysis, would be
excluded from evidence. However, if all the persons who came in contact
with the knife are known, are available to testify concerning their part in the
transaction, and can establish that the knife had not been tampered with, the
knife and the analysis would be admitted in evidence.

FYI

In the example of Officer A and the bloodstained knife, it would have been
a much better procedure for Officer A to have maintained possession of the
knife until he was able to take it to the crime laboratory personally and turn
it over directly to the blood-analysis expert. This procedure could have
eliminated three potential witnesses—Officer B, who took the knife to the
station; Officer C, who transported the knife to the crime laboratory; and
Clerk D, who accepted the knife from Officer C. Ideally, Officer A would
also have retrieved the knife directly from the crime laboratory after the
analysis.

Although an accurate and complete record is maintained of the chain of

custody of physical evidence, the objects should go through as few hands as
possible. This is because, the fewer the number of persons who come in
contact with the physical evidence, the less the chance that it will be
tampered with, altered, or lost entirely. Probably even more important, each
person who comes in contact with the physical evidence may have to be
called as a witness to establish the fact that the evidence analyzed was, in
fact, found in connection with the crime at issue. The necessity of using a
long line of witnesses to prove a relatively small segment of the case can be
time-consuming, as well as tedious for the jury. Jury members could well
lose interest in the case, and the value of the physical evidence would be
lost entirely. Also, when a number of witnesses are required to prove a
point, the unavailability of one witness in the chain may be enough to
exclude the object from being introduced into evidence.

Page 433

For purposes of chain of custody, an object may be treated differently once

it has been subjected to analysis. Before analysis, proof must be presented
that no tampering, contamination, or substitution took place between the
time the object was found and the time it was subjected to the analysis.
After the analysis, all that is necessary is that the officer who found the
object be able to recognize it at the time it is produced in court. However,
there are many objects that do not lend themselves to ready recognition, so
the chain of custody, even after an analysis, should not be overlooked.
Marking Objects for Identification
The identification of physical evidence by means of complete custody is not
always practical, and identification by maintaining a record of the chain of
custody sometimes breaks down because of a missing piece of information
or an inaccuracy. Therefore, the officer may wish to make an object more
recognizable at the time of trial as the one he or she found in connection
with a particular crime. As the prosecution can introduce only relevant
objects into evidence against a defendant, the identification of an object in
court is extremely important. If the officer is not positive that an object is
the same one he or she found, then the object has no relevance to the case
and cannot be used against the defendant. Many cases are won by the
government because the jury finds the physical objects offered as evidence
convincing beyond a reasonable doubt, not because the testimony of an
officer, an expert, or a witness is especially compelling. The jurors are
convinced because the physical evidence speaks plainly for itself, and they
believe the physical evidence to be more reliable than mere human
perception and memory.

ON THE JOB

The following example helps emphasize the importance of marking an

object that is to be used as physical evidence.

Assume that the only physical evidence found at a murder scene was human
tissue and blood found under the victim’s nails, presumably obtained from
scratching her killer. An officer collected the sample in a vial but failed to
mark it in any identifying manner. The sample went to the crime laboratory
and was analyzed. However, because there were two unmarked samples that
arrived that day, no one at the lab knew which sample belonged to which
case. When the defendant’s case went to trial a year later, even though one
of the samples had the defendant’s DNA and blood type, the officer could
not state in court that the sample was the same one that he had collected at
the crime scene. Therefore, the evidence was not admitted and the
prosecution was forced to drop all charges for lack of evidence. Although
this is an extreme case, the moral of the story is the same for all similar
situations: If you cannot identify the object as being the same object that
you found at the crime scene, you cannot use that object as evidence, and
you will be forced to use other evidence, if any exists, to convict the
defendant.

It is generally most efficient and desirable for the officer who discovered
the object to mark it in such a manner that he or she will recognize it at a
later date. The mark should be made at the time the object is removed from
its original position and should be distinctive, so that the officer will
recognize it as the one he or she placed on the object. The officer’s initials
and the date of the marking will usually be sufficient to enable the officer to
identify the object at a later time.

Page 434

An object should be marked at the time it is found, whether the officer plans
to maintain complete custody and control of the object or maintain an
accurate record of the chain of possession. Then, in the event of an
unexpected release of the object to another, or a gap in the record of chain
of possession, the officer will still be able to recognize the object and
connect it with the specific crime and scene. Even if an object is not to be
examined scientifically or released to anyone else, the officer should mark it
so that, when the officer is on the witness stand, there will be no doubt in
his or her mind that it is the original object. Because the officer will have no
doubt about the identification, the officer’s testimony will likely eradicate
any doubt on the part of the jury that the object produced in court is the one
the officer found at the scene of the crime.

In most instances, there is a considerable lapse of time between the

discovery of physical evidence and its production in court. The officer may
believe at the time of discovery that he or she will readily recognize the
evidence in the future. This is not always possible, and there may be an
allegation by the defense on the possibility of a substitution in connection
with the object in question. Therefore, the officer must be in a position to
testify, without any doubt, that the object produced in court is the same one
found in connection with the transaction at hand.
As acceptable and convincing as marking a piece of evidence for
identification is, it is not without its complications. First of all, marking
physical evidence can be a time-consuming procedure, and the many other
responsibilities at a crime scene frequently do not allow the time necessary
to do the job thoroughly. Also, many objects found at a crime scene are not
easy to mark, such as objects with hard surfaces, soil specimens, hairs, and
fibers. These objects may have to be transported to the station, where
proper tools for marking are available. Finally, some objects should not be
marked directly, such as bullet fragments, because any marking could ruin
the surface and destroy striation markings on the fragment. Irrespective of
such problems, the importance of marking physical evidence cannot be
overemphasized.

If the officer finds it impossible to mark an object properly at the crime

scene, the object (hairs, fibers, or other trace evidence) should be placed in
a paper or plastic bag, or other container, and marked for identification. The
item might have a tag attached to it with an identifying notation on the tag,
or a tag can be placed in or attached to the protective packaging.

It is not possible to outline the exact ways in which the various objects
found at a crime scene should be marked, but, because of the unique
problems that are presented in marking certain objects, a few guidelines
will be set forth. Anytime an officer or a criminalist is marking an object, he
or she must be extremely careful to make the marking so as not to interfere
with any scientific examination that may be performed in connection with
the object. Also, the law enforcement professional must exert every effort
not to obliterate any latent prints that may be on the object.

Nothing in the rules of evidence requires that a marking for identification

purposes be extensive. The mark should consist of the marker’s initials or
some other unique mark that will enable the officer to recognize it at a later
time. A simple “X” mark should be avoided. The data that usually
accompany the identification of an object, such as where, when, and by
whom found, may be written on a tag that is attached to the object.

Page 435
Even though an object is marked for identification, a record of the chain of
custody is still very important. This is particularly true when physical
evidence must be examined by an expert. Again, it must be proven that the
evidence was in the same condition when examined as when it was found at
the crime scene.

Besides the distinctive identifying mark made on the object by the officer or
other law enforcement professional removing it from the crime scene,
additional information should accompany the object from the time of its
discovery until it is presented in court. It is not only impractical but also
inadvisable to maintain these data on the article itself. The data are best
recorded on a tag, sticker, or slip of paper attached to the article or to the
container in which it is kept.

Although there will be notes or other official records that will provide
information on the physical evidence, the law enforcement professional
should also include an evidence tag with the article itself to provide for easy
identification and retrieval from the evidence locker. The tag also enables
the quick refreshing of memory concerning the article at the time of the trial
and assists in maintaining a more accurate and complete record of the chain
of possession.

There is no set format for recording the information on the tag or for the
contents of the tag. Typically, the tag should contain (1) the case number;
(2) the name of the defendant; (3) the name of the victim; (4) the name of
the law enforcement professional who found the object; (5) the date, time,
and place where the object was found; (6) a brief description of the article
(this is important in case the tag becomes detached from the object and
because some objects cannot be recognized from appearance alone); (7) the
signature of the person finding the object; (8) the person to whom the object
was released and the reason for the release; (9) the date and time of release;
and (10) the ultimate disposition of the object—what will be done with the
object if it is not used as evidence.

In many instances, the tag can be attached to the object by a string or wire.
For example, the string or wire can be attached to the handlebars of a
bicycle, the buttons or zipper on a piece of clothing, or a weapon. Stickers
can be placed on large items, such as televisions, stereos, or video
recorders, as well as on small items, such as vials of blood, urine samples,
or plastic bags containing drugs. Tags on slips of paper can be placed in
envelopes with documents, such as checks, insurance or proof of ownership
records, or sales receipts.

When the physical evidence is returned to the collecting officer from

another person (perhaps an expert) to whom the collecting officer released
it, the collecting officer should examine the physical evidence to make
certain that it is the proper evidence. The collecting officer should make a
record of the return date, verify the identifying marks, and note any change
in the appearance of the evidence. This is particularly necessary when the
physical evidence has been examined by a laboratory expert because the
laboratory expert may have removed a portion of the physical evidence or
changed its appearance in some way. By examining the evidence upon its
return, the officer will not be caught by surprise on the witness stand and
will be prepared to explain any changes that have occurred in the evidence.
Storage of Physical Evidence
With a little experience, the average law enforcement professional will
become proficient in collecting, marking for identification, and tagging
physical evidence. However, much of the value that could be derived from
the evidence is often lost because of deficient storage procedures. Many law
enforcement agencies have little storage space or inadequate facilities, and
proper storage of physical evidence is difficult. As a result, the property
control officer may have to place objects found at crime scenes on top of
lockers and file cabinets or in a large closet along with hundreds of similar
items. When the time for trial comes, the property control officer finds it
difficult to testify convincingly that he or she had complete custody and
control of the object, that an accurate record of the chain of possession
exists, or that there was no tampering with the evidence. Any of these
circumstances may cause the object to be excluded from evidence.

Page 436

A well-run law enforcement agency takes extra care to ensure the proper
storage of physical evidence, especially since defense counsel are focusing
their attacks more and more on the foundations for physical evidence.
Today, more than ever, officers and prosecutors have to rely on scientific
investigations and the presentation of physical evidence to prove the
defendant’s guilt. Therefore, no chances should be taken on physical
evidence being lost or excluded because of improper storage. Each
department should have a separate room, or rooms, set aside for the storage
of physical evidence. The evidence storage room door should have a
combination lock or special key that only the property control officer and
his or her supervisor have the means to open. Additionally, the evidence
locker should be organized by item type. For example, refrigerators should
hold perishable items, such as blood and urine; separate cabinets or lockers
should be used for clothing, narcotics, weapons, tools, explosives or
ammunition, and electronic items, such as stereos, smartphones, digital
recorders, laptop computers, tablets, and other digital devices. Large items,
such as bicycles, should be placed in a corner, or outside with vehicles in a
secure, enclosed area that is protected by camera surveillance to ensure the
safety of the evidence.

The property control officer maintains a log of all items that are placed in
the evidence storage area and their location, as well as all people who enter
and the items retrieved. This maintains the chain of custody and control of
the evidence inside the locker and, in many states, allows the department to
know when a lost or unclaimed item in police possession has gone
unclaimed for the statutory time period, allowing it to be auctioned off.

Objects should be stored in a manner in which they can retain their original
shape and appearance as much as possible. When objects are to be stored
for a considerable period of time, it is advisable to place them in cartons or
paper or plastic bags in order to prevent dirt, dust, and the elements from
affecting their appearance. The cartons or bags should be sealed and marked
with the proper identifying data on the outside of each package, from which
the contents may be easily determined. Such storage will prevent
unauthorized handling, as well as aid in keeping objects from being soiled
or losing their appearance. There have been times when articles were
excluded from evidence because of marked alterations in their appearance.
If the physical evidence is going to create confusion instead of clarifying a
fact in the case, it will be excluded.

Because of the shortage of personnel and the routine nature of many

investigations, it is not practical to assign two officers to investigate all
crimes. But it is advisable in major cases to have two officers, crime scene
investigators, criminalists, or other law enforcement professionals present
when the physical evidence is collected and marked for identification.
Either person could then testify concerning the object and its connection
with the case and thereby refute any allegations of planting evidence.
Otherwise, if only one officer has knowledge of the physical evidence and
if that officer should become unavailable, the evidence would most likely
be found inadmissible and its value lost to the prosecution of the case.
Page 437

Delivering Physical Evidence

Many police departments require the officers to deliver physical evidence
personally to the crime laboratory for scientific investigations. However, in
some areas, the only practical way of transmitting physical evidence to a
crime laboratory for scientific examination is by mail or other delivery
service. Even in large cities, such delivery methods are commonly used. To
maintain the chain of possession of the evidence, the officer who collects
the object should wrap it, seal the container, and properly initial it. Included
on the outside of the package should be a cover letter describing the object
to be examined and the desired examination, thus eliminating any
unnecessary handling of the item. After the object has been wrapped,
sealed, and initialed by the officer, the whole package, including the cover
letter, should be wrapped with an outer wrapping suitable for shipping and
properly addressed to the crime laboratory with the notation that the
package contains evidence. The package should be sent by a method that
requires a recipient’s signature.

Explosives and narcotics should never be shipped without meeting the

federal shipping guidelines. A separate letter or phone call to the crime
laboratory should be made, advising that a package is in transit; this letter
should also describe the object being transmitted and the desired
examination. The crime laboratory can then be on alert for the package, and
the number of persons handling the package can be limited.
Preparation of Physical Evidence
for Use in Court
Much of the impact of physical evidence can be lost if the manner in which
it is exhibited is not well planned. Many people are reluctant to touch
evidence items, such as a bloodied object or a weapon, and, consequently,
the jurors pass up the opportunity to examine the objects fully as they are
introduced in court. Some thought should be given to placing the various
objects in suitable containers with transparent tops or sides. This way, the
jurors can freely pass the object from one to another with little
apprehension about holding or inspecting the object. Weapons should be
placed in a box or mounted on a board, and, though a fatal bullet may
appear perfectly clean, there are those who prefer not to touch something
that has brought about the death of a human being. The projectile should be
laid on cotton and placed in a small plastic box for the jurors’ examination.
A plaster of paris cast of a shoe track that has dirt and debris still on it, and
the shoe that is alleged to have made the track, should be placed in a
container for better inspection by the jury.

With the use of a little ingenuity and planning, physical evidence can be
most effectively displayed to the jury and its use as evidence greatly
enhanced. Physical evidence emphasizes and substantiates an officer’s
testimony. In all jurisdictions, jurors take the physical evidence with them
while deliberating to enable them to recall the testimony of the investigating
officer better and to have it at hand for consideration.
Page 438

Gruesome Objects
Often, the physical evidence collected at the scene of a crime, particularly
in murder cases, is gruesome or repulsive. Consequently, the courts seek to
avoid unduly prejudicing the jury against the defendant, and most judges
conduct the balancing test of FRE 403 to avoid unnecessarily exhibiting
gory objects that may “inflame the jury and excite their emotions.”1 FRE
403 states that relevant evidence may be excluded “if its probative value is
substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presentating cumulative evidence.” The court
weighs the importance of the gruesome object to the prosecution against the
effect the evidence will have on the jury. The evidence will be admitted
unless the prejudice against the defendant is substantially greater than the
value of the evidence to the jury in determining the outcome of the case.
Therefore, the mere fact that some object may excite the jurors or cause
them to recoil is not enough to exclude it from evidence.

Photographs of the Crime Scene or Corpses

In State v. Thompson,2 the court stated:3

Photographs of homicide victims are admissible at trial even if they are

“gory, gruesome, horrible or revolting so long as they are used by a
witness to illustrate his testimony and so long as an excessive number
of photographs are not used solely to arouse the passions of the jury.”

The principle stated in the Thompson case helps assure that prosecutors will
be able to admit any gruesome evidence necessary to prove their case and
that victims of the most gruesome murders will still be able to obtain
justice.4
Gruesome photographs have been admitted to show the crime scene,
including the physical layout of the murder location and the area where
significant objects, such as the body, spent cartridges, bullet holes, and
blood spatter, were found. These types of photographs can often help clarify
testimony. Gruesome photographs of the body and/or the autopsy have been
admitted to show the location of wounds as well as the extent of the
injuries. For example, in a California case, a videotape of the victim was
properly admitted into evidence. “The videotape was relevant in depicting
the position of the victim’s body in the tub—gagged, a pillow case secured
over the head, and arms and legs bound behind the back—supporting the
prosecution’s theory that the defendant, contrary to the defense presented at
the trial, had acted with malice and the intent to kill, and that the killing was
deliberate and premeditated. The videotape also corroborated Officer
Perkins’s testimony describing the crime scene.”5

In all jurisdictions, a gruesome photograph will be excluded if its probative

value is substantially outweighed by its potential for unfair prejudice. The
purpose of this rule is to prevent a conviction based solely on the violence
and depravity of the crime because the jury has viewed graphic and
gruesome photos of the victim’s body or crime scene. Of all the
jurisdictions, Utah law imposes a greater burden on the prosecution before a
gruesome photograph can be admitted into evidence: “The introduction of
potentially prejudicial photographs of a corpse is generally inappropriate if
the only relevant evidence they convey can be put before the jury readily
and accurately by other means not accompanied by the potential
prejudice.”6 In 2016, that court rejected the prior case law and fell in line
with the almost universal view that the principles of Rule 403, the Utah
version of which is identical to the FRE, govern.7

Videos of the Crime Scene or Corpses

Under FRE 1001(2), the term “photographs” includes still photographs, as
well as video recordings and motion pictures. A properly authenticated
video is generally admissible, within the discretion of the trial court, if it is
relevant to the issues in the case. Under the same principles stated in the
Thompson case, the question before the court is whether the video’s
probative value is substantially outweighed by its possible prejudicial
effect. Crime scene videos are generally admissible if relevant to show
motive, intent, method, malice, premeditation, or the atrociousness of the
crime, even though photographs of the scene have also been admitted. As
with photographs, however, the admissibility of crime scene videos
challenged because of their alleged gruesome or inflammatory nature must
generally be determined on a case-by-case basis by weighing their
probative value against the danger of unfair prejudice. Hence, on a case-by-
case basis, all jurisdictions allow videos into evidence even though they are
claimed to be too gruesome, unless the potential for unfair prejudice
substantially outweighs the probative value.8
Physical Objects Not Produced in
Court
There is no requirement that all physical evidence in a case must be
produced or introduced into evidence. There is only the requirement that the
defendant be afforded a fair trial. The prosecuting attorney has the final
decision in determining which evidence will be presented, if at all, and how
it will be presented. The prosecutor has several options in presenting
information to the jury, even if a particular physical object is too large to
bring into the courtroom or presents logistical problems, such as a
courthouse ban on explosives or highly toxic chemicals.

Photographs, video recordings, constructed models, and witness testimony

are traditional methods of introducing these objects. The proliferation of
state-of-the-art computer technology has allowed physical objects to “come
to life” before the eyes of the jury. In many jurisdictions, absent witnesses
can be examined over closed circuit television in the courtroom.9
Photographs from the crime scene can be projected upon a screen, and
large-screen projection units can display video taken from the crime scene,
in addition to displaying computer-generated graphics, such as flow charts,
spreadsheets, and computer-aided sketches of the crime scene. Computer-
generated animations can also be used to re-create the crime or accident
scene.

These methods of presenting evidence of objects can require a substantial

amount of time to prepare. The prosecutor, therefore, needs to determine
which method of presenting the evidence will be most effective with the
jury, and then allot the necessary time.

Page 440

Courtroom demonstrations and experiments may also be used to depict

facts or events. Such a demonstration is admissible as long as it is relevant,
presents a reasonably accurate representation of the facts or events depicted,
and aids the jury in understanding the matter depicted or the subject of the
experiment. Demonstrations and experiments can be very effective, but they
also can be very risky. Unless the demonstration or experiment has been
well rehearsed, it can backfire. A famous example of a questionable
demonstration is the prosecution’s demand that O.J. Simpson try on a
bloody glove in the presence of the jury in the first criminal trial against
Simpson. Simpson made a convincing display of the difficulty of fitting his
hand into the glove. His counsel, Johnny Cochran, later quipped, “If it
doesn’t fit, you must acquit.” And the jury did just that.
Viewing of the Crime Scene by the
Jury
Photographs and videos of crime scenes are frequently displayed to jurors
to enable them to understand and follow the testimony of the witnesses
better. However, there are times when the jury goes to the scene of a crime
to view the physical aspects of the location. This is usually done when it is
anticipated that there will be a great deal of testimony regarding the crime
scene and the judge believes the jurors will have a better understanding of
the issues involved if they have viewed the scene. The trial judge has the
discretion of allowing the jury to view the crime scene,10 taking into
consideration the time the viewing will take and the value of the viewing. If
the jury will gain little more information through the viewing than can be
accomplished through a series of photographs or videos, or if the scene has
been materially altered and would mislead the jury, the judge will likely
deny the viewing. In some states, the viewing is conducted under the
supervision of a person appointed by the court to ensure there is no
communication with the jury on any subject connected with the trial.11 It is
difficult, if not impossible, for a jury to erase a crime scene completely
from their minds and, due to the harm that may be done and misconduct
that may take place, a trial judge may be reluctant to permit a jury to view a
crime scene.

The trial judge has control of how the viewing will be handled; he or she
can answer questions posed by the jurors and asked of the attorneys.12 It is
not required that the defendant be present at the viewing,13 although, if
comments are going to be made to the jury, such as pointing to certain
features of the scene, the defendant’s attorney must be present and the
comments must be recorded.14 If the defendant is present, though, the judge
can order the defendant handcuffed or shackled.15
Application Case
A judge in the sentencing trial of Nikolas Cruz for the killing of 17 people
decided that the jury that will decide whether to apply the death penalty can
tour the scene of the crime. The shootings took place at Marjory Stoneman
Douglas High School in Parkland Florida on February 14, 2018. Cruz plead
guilty to 17 counts of murder and 17 counts of attempted murder on
October 20, 2021. Over defense argument that the tour was unnecessary
since the jury need not decide whether Cruz committed the murders, the
judge said: “The Court finds that a jury view of the crime scene remains
useful and proper, even in light of the current posture of the case,” Scherer
wrote in a ruling posted Monday. “The purpose of a jury view is to assist
the jury in analyzing and applying the evidence presented at trial.” (See
[Link]
school-building-17-killed-judge-rules-rcna23059 or
[Link] last
visited 4/5/2022.)
Page 441

Review and Application

Summary
1. Authentication can be accomplished through (1) testimony of a witness
who has firsthand knowledge; (2) a nonexpert who was familiar with a
person’s handwriting and did not gain the knowledge of the
handwriting for the purpose of the litigation, such as a spouse or
roommate; (3) allowing the jury or an expert to compare the object to
an example and decide its authentication; (4) distinctive characteristics
and surrounding circumstances, such as sending a bill to an address
and receiving payment from the bill; or (5) voice identification that can
be learned firsthand or through a mechanical or electronic
transmission, such as a television or an answering machine.

2. The four general categories of physical evidence are fruits of a crime,

instrumentalities of a crime, contraband, and evidence of a crime.

3. The typical record of chain of custody, or possession, includes the

person who initially observed the object, the possession of the object
by the officer, transportation to the laboratory, possession by the
laboratory technician, retrieval by another officer and transportation to
police storage facilities, and final transport to court.

4. An officer can do the following to identify an object positively in court

as the one that the officer found at the crime scene:

1. The officer may keep the object in his or her complete and
exclusive custody and control from the time it was found until it
is presented in court.

2. The officer may maintain a complete and accurate record of the

chain of custody.
 3. The officer may mark the object in some distinctive manner,
making it readily recognizable later.

5. Typically, the tag should contain (1) the case number; (2) the name of
the defendant; (3) the name of the victim; (4) the name of the person
who found the object; (5) the date, time, and place where the object
was found; (6) a brief description of the article (this is important in
case the tag becomes detached from the object and because some
objects cannot be recognized from appearance alone); (7) the signature
of the law enforcement professional finding the object; (8) the person
to whom the object was released and the reason for the release; (9) the
date and time of the release; and (10) the ultimate disposition of the
object—what will be done with the object if it is not used as evidence.

6. It is advisable to place items of evidence in cartons or paper or plastic

bags in order to prevent dirt, dust, and the elements from affecting
their appearance. The cartons or bags should be sealed and marked
with the proper identifying data on the outside of each package, from
which the contents may be easily determined.

7. FRE 403 states, “Although relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation
of cumulative evidence.” The court weighs the importance of the
gruesome object to the prosecution against the effect the evidence will
have on the jury. The evidence will be admitted unless the prejudice
against the defendant is substantially greater than the value of the
evidence to the jury in determining the outcome of the case. Therefore,
the mere fact that some object may excite the jurors or cause them to
recoil is not enough to exclude it from evidence.

Page 442

Key Terms
physical evidence 424
 real evidence 424

demonstrative evidence 424

relevant evidence 424

authentication 424

laying the foundation 424

fruit of a crime 427

instrumentality of a crime 427

contraband 427

evidence of a crime 427

chain of custody 429

exclusive control 430

Questions for Review

1. What are five examples of how authentication can be accomplished?

2. What are the four general categories of physical evidence?

3. What are the order and persons in a typical chain of custody?

4. What are the three methods an officer can use to positively identify an
object in court as the one that the officer found at the crime scene?

5. What information should be placed in a typical tag?

6. How should items of evidence be packaged for long-term storage in an

evidence locker?
 7. What is the balancing test of FRE 403 for admitting gruesome objects
into evidence?

Thinking Critically About Evidence

1. Consider the crimes of rape, embezzlement, and car jacking. For each
crime, make a list of (a) several sources of physical evidence and (b)
examples of the four kinds of physical evidence that you would look
for while investigating those crimes.

Workplace Application
1. An officer responds to a “man down” call and discovers that the
victim, lying in the middle of the road, was shot in a drive-by shooting.
A crowd had gathered around the body, but it disperses upon the
officer’s arrival. Cars are still driving down the street. The officer, with
the help of several other officers, cordons off the area, interviews
witnesses, and searches for evidence. The officers discover that the
vehicle containing the shooters grazed a parked car and knocked off its
side mirror. The mirror frame is found lying in the road. Additionally,
several shell casings are found, one run over by a car and two others
undamaged, in the street. What type of information might be gained
from these pieces of evidence? How will the officer ensure that the
mirror frame and the casings can be authenticated when the officer is
called to testify in court?

Page 443

Ethical Dilemma
1. An officer recovers a balloon full of tar heroin from a suspect during a
drug bust. The officer books the item into evidence, forgetting to write
his initials on the balloon. Two days later, the officer retrieves the
balloon from the evidence locker to take to the defendant’s preliminary
hearing and notices his mistake. The chain of custody log is complete
and there are no breaches, but the officer knows it will be easier to
 prove the heroin’s authenticity at the preliminary hearing, and
ultimately at the trial, if his initials are on the balloon. No one else is
aware that the officer forgot to initial the balloon. Should the officer
initial the evidence? Explain your answer.

Endnotes
1. See, e.g., United States v. Waloke, 962 F.2d 824, 829 (8th Cir. 1992).

2. State v. Thompson, 402 S.E.2d 386, 394 (N.C. 1991), quoting State v.
Murphy, 365 S.E.2d 615, 617 (N.C. 1988).

3. Id. at 394. See generally M.C. Dransfield, Annotation, Admissibility of

Photograph of Corpse in Prosecution for Homicide or Civil Action for
Causing Death, 73 A.L.R. 2d 769 (1960 & Supp. 2018) (a collection
of cases, the majority of which admit gruesome photographs of
victims’ corpses).

4. See 2 Handbook of Fed. Evid. § 401:7, text accompanying n.27 (8th

ed. 2018).

5. People v. Sims, 853 P.2d 992, 1020 (Cal. 1993).

6. State v. Lefferty, 749 P.2d 1239, 1257 (Utah 1988), citing State v.
Garcia, 663 P.2d 60, 64 (Utah 1983).

7. Met v. State, 388 P.3d 447, 469 (Utah 2016).

8. Danny R. Veilleux, Admissibility in Homicide Prosecution of Allegedly

Gruesome or Inflammatory Visual Recording of Crime Scene, 37
A.L.R. 5th 515 (1996 & 2018 Supp.).

9. Annotation, Closed-Circuit Television Witness Examination, 61 A.L.R.

4th 1155 (1988 & Supp. 2004).

10. See People v. O’Brien, 61 Cal. App.3d 766, 780 (1976); State v.
Cintron, 665 A.2d 95 (Conn. App. 1995); Harper v. State, 357 S.E.2d
117 (Ga. App. 1987).
 11. See, e.g., Cal. Penal Code § 1119, Fl. St. at § 918.05.

12. See People v. Mayfield, 928 P.2d 485, 525 (Cal. 1997).

13. See Snyder v. Massachusetts, 291 U.S. 97 (1934) (defendant’s due

process rights are not violated if he or she is absent during the jury’s
viewing of the crime scene); Amazon v. State, 487 So. 2d 8, 10 (Fla.
1986); Valdez v. United States, 244 U.S. 432 (1917) (defendant’s Sixth
Amendment right to confrontation is not violated if he or she is absent
during the jury’s viewing of the crime scene if such rights were
voluntarily waived).

14. See, e.g., Arnold v. S. Carolina, 467 U.S. 1265 (1984).

15. See Woodards v. Cardwell, 430 F.2d 978, 982 (6th Cir. 1970), cert.
denied, 401 U.S. 911 (1971); State v. Landrum, 559 N.E.2d 710, 724
(Oh. 1990); People v. Hardy 825 P.2d 781, 836 (Cal. 1992).

Design Element: ©Ingram Publishing

Page 444

14

Photographic, Recorded, and

Computer-Generated Evidence

David Hume Kennerly/Getty Images

Page 445

Chapter Outline

Photographs, Recordings, and the Like as Evidence

Prints Versus Projected Images

 Videos

Photocopy, X-Ray, and Computer-Generated Output

The Rise of Technology

First Rule of Admissibility—Foundation for Relevance

Gruesome Photographs and Videos

Nude Photographs

Second Rule of Admissibility—Foundation for Authentication

Accuracy Is Required

Proof of Accuracy

Photographer Not Necessary to Verify Accuracy

Photographer Need Not Be an Expert

Foundation by Chain of Custody, or Possession

Foundation by Distinctive Characteristic

What Should Be Used for Identification Purposes

Where the Object Should Be Placed

What Data Should Be Included on the Identification Card

Placement of Measurement Devices in the Scene

Posed Photographs and Video Recordings

Methods of Presentation in the Courtroom

Photographic Prints as Evidence

Demonstrative Diagrams, Charts, and Boards

Projected Images
 Consideration of Other Matters

How Many Photographs Should Be Taken

Preparing Photographs, Videos, and Computer Output for Trial Use

Photographic, Video, Software, and Equipment to Be Used

X-Ray Photographs

Review and Application

Chapter Objectives

This chapter examines the rules of evidence as they relate to visual and audio
presentations in the courtroom. After reading this chapter, you will be able to:

Define the kinds of evidence included in the terms “writings” and

“recordings” in the FRE.

State the circumstances in which video and audio evidence may be used in
court.

Decide when to use a hard copy or a projected image in presenting evidence.

List the various uses of photographic and recorded evidence.

State the first rule of admissibility of photographic and recorded evidence.

Determine when a gruesome photograph or video recording is likely to be

admitted.

State the second rule of admissibility of photographic and recorded

evidence.

Identify those witnesses who can authenticate a photograph or recording.

List the three methods of authentication of photographs and recordings.

List the data to be included on the crime scene identification card.

State when a posed or reconstructed scene is acceptable.

Identify the methods of presenting photographic or recorded evidence.
Page 446

Photographs, Recordings, and the

Like as Evidence
Early in the twentieth century, courts were often unwilling to accept photographs
as evidence. Today, however, photographs are accepted as physical evidence as
readily as a gun used in a murder or a knife used in an assault. Moreover, modern
technology has generated a variety of forms of evidence that depict or record both
sounds and images and that are readily admitted as evidence on the same basis as
photographs. Included in this category are scanned copies, photocopies, motion
picture films, video and audio recordings, X-rays, computer-generated images
projected on a screen or printed onto paper, and all manner of digitally produced
media.

Photographs, films, video recordings, and digital recordings of the scene of a

crime or accident are indispensable as a means of preserving such evidence in the
event of deterioration or alteration of the scene. The prosecution in a criminal
case routinely introduces at trial still photographs or videos of the crime scene.
Similarly, recorded audio and video preserve actions or spoken words and are
especially effective in contradicting claims made by parties and witnesses at trial.
For example, in the first O.J. Simpson criminal trial, the prosecution used
Simpson’s fitness video to contradict his claim that he suffered from a debilitating
arthritic condition.

The FRE have defined photographic and recorded evidence in nonexclusive

language in order to allow the most scientifically advanced forms of evidence.
Additionally, since tangible evidence can be substantive (real) evidence or
demonstrative evidence, photographic and recorded evidence falls within both
categories. Thus, such evidence can be used to aid the jury in understanding the
circumstances and can be used by the jury to decide a question of fact in a case.

FRE 1001 defines writings and recordings as “letters, words, or numbers, or their
equivalent, set down in any form [for writings] … [or] recorded in any manner
[for recordings].” Photographs “means a photographic image or its equivalent
stored in any form.”
To introduce a photograph or recording in evidence, certain legal steps must be
followed: for example, showing relevance, laying the foundation, and satisfying
the best evidence rule. Because of these requirements, and because of the
importance of audio and visual aids in the trial of a case, especially a criminal
case, this entire chapter is devoted to this subject. Describing the techniques of
photography, videography, and computer-generated imaging is beyond the scope
of this text. The discussion, therefore, will be confined to the rules of evidence as
they apply to the introduction of audiovisual evidence offered as substantive
evidence or to aid the jury in understanding the case.

Prints Versus Projected Images

Prints and projected images are readily admissible when used to illustrate
testimony. Furthermore, photographs, slides, films, videos, and projected
computer-generated images rarely cause difficulty when being qualified for use at
trial, or, as it is called, authenticated and identified. In other words, laying the
foundation for such evidence is generally easy to accomplish. Visual aids will be
admitted when they enable the judge or jury to better understand the evidence
presented during trial. Photographs, as well as videos and computer output, may
be used as either substantive evidence or demonstrative evidence. If the visual aid
is used by the jury in deciding facts, such as the number and location of wounds,
then the visual aid is used as substantive evidence. On the other hand, if the visual
aid is used solely to illustrate testimony given by a witness, then the visual aid is
demonstrative evidence only. This distinction is important because if
photographs, slides, videos, films, and computer output are classified as
demonstrative, they will be admitted with a minimum of foundation, and even if
not totally accurate in every detail. As long as the pictorial image will assist the
jury in understanding the testimony of a witness or will illuminate an idea, the
judge has discretion to allow the jury to see the demonstrative aid.

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Many courts distinguish between photographs used as “pictorial testimony” and

photographs admitted on the “silent witness” theory. When a photograph is used
as pictorial testimony, that is, used to illustrate a witness’s testimony, a
sponsoring witness must testify that it is a fair and accurate representation of the
subject matter, based on that witness’s personal observation. However,
photographs or videos, taken by an automatic camera with no operator present,
may be introduced to document the events recorded under the silent witness
theory. When a photograph or video is offered as a silent witness, for example, an
image from a video camera at an automated teller showing someone tampering
with the teller, the video is admissible as evidence of the events without a
sponsoring witness, since, in fact, there is none. A witness must simply testify as
to how the equipment works and that the video was removed from the equipment
and is from the date and time in question.

The advantages and disadvantages of using projected images rather than hard
copies should be considered before deciding on which version to use at trial. It is
often necessary for counsel and the judge to discuss an exhibit before it can be
shown to the jury. Each side is entitled to view all visual aids offered in evidence
by the opposition before the visuals may be admitted. In a sidebar discussion with
both attorneys, the judge decides whether there is some reason to keep the
evidence from the jury. If the judge decides not to admit the exhibit, the jury will
never hear the discussion or see the visuals. If the exhibit is a projected image or
is otherwise displayed in full view in the courtroom, the jury must be excused or
some other procedure followed so that the images are not shown in the jury’s
presence. Such problems can be avoided by having small prints made of the
projected images that are going to be used, thereby preventing jury exposure
during the discussion on admitting the exhibits. The advantage of using projected
images rather than prints is that the large images on the screen can be viewed by
the entire jury at once, whereas prints must be viewed individually by jurors.
Generally, the preferable course is to have both projectable images and prints
made, thus avoiding some of the difficulties that may arise when such evidence is
used.

Videos
With the growth of video technology, officers have increasingly used video in all
aspects of law enforcement, and courts have readily admitted such evidence at
trial. Since video evidence falls under the heading of photographs, all rules that
apply to photographs also apply to videos. Courts uniformly agree that the
question of the admissibility of video evidence is a matter of discretion for the
trial court.

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Photocopy, X-Ray, and Computer-Generated Output

Though these images may require slightly more effort to authenticate, forms of
“high-tech” evidence, including computer-generated output, X-rays, and
photocopies, are also held to the same standards of admissibility as videos and
photographs. Computer-generated reproductions, summaries, and models of
complex undertakings have gained acceptance in the courts, provided that the
evidence is relevant, is not hearsay, and is supported by a proper foundation.
Computer simulations also can be used in re-creating a crime or an accident
scene. Such simulations can attract and fix the attention of the jury and may be
more effective than a mundane lecture by a witness.

FYI

The best evidence rule requires that, to prove the content of a writing, recording,
or photograph, the original is usually required. However, an “original” of a
photograph includes the negative or any print made from the negative, according
to FRE 1001(d). Moreover, FRE 1003 states that, in most cases, a “duplicate is
admissible to the same extent as an original.” A duplicate, as defined in FRE
1001(e), is a “counterpart produced by a mechanical, photographic, chemical,
electronic, or other equivalent process or technique that accurately reproduces the
original.”

In other words, mechanically or electronically reproduced copies of writings,

photographs, videos, motion pictures, audiotapes, and computer images are all
admissible to the same extent as the original form of such materials.

X-ray plates or negatives may be displayed to the jury, although interpreting an

X-ray usually requires testimony by an expert. On the other hand, a copy created
by a photographic or other reproduction method, such as xerography (commonly
referred to as a Xerox copy), is admissible to the same extent as an original. Thus,
a properly authenticated, relevant Xerox or photocopy of a document,
photograph, or diagram will be readily admitted into evidence.

A wide variety of forms of demonstrative evidence and visual aids exist, and the
number of variations continues to increase as computer and electronic technology
continues to advance. However, the traditional photograph continues to be used
frequently, most likely because photographs are still simpler to produce than
images created using other high-tech methods. And with the advent of
smartphones with built-in cameras of rather high quality, photos taken by such
means abound.
Photographic, recorded, and computer-generated evidence has an extremely wide
variety of uses. Such evidence can be used

1. to show the scene of any incident, including the crime scene;

2. to demonstrate a theory as to how events occurred or might have occurred;

3. to record the behavior of a party or witness;

4. to document surveillance of an individual;

5. to record police lineups, identification procedures, and the act of

identification itself;

6. to record activities of those being investigated for driving under the

influence, including the administration of field sobriety tests;

7. to record interviews of suspects, victims, or witnesses;

8. to record depositions or to preserve testimony;

Page 449

9. to record criminal confessions; and

10. to record or generate crime re-enactments and accident re-creations.

 South_agency/Getty Images

Clearly, this list is not exclusive. The potential uses of such evidence can be of
extraordinary help to the officer in seeing that his or her work does not simply
end with the arrest but culminates in a conviction.

The Rise of Technology

By the end of the 1980s, the technological revolution had reached the point at
which computers, VCRs, Xerox, and photocopy machines had become
commonplace in the office and in the home. Now, DVD players, MP3 players
(such as iPods, iPhones, and Androids), digital recorders, laptop computers,
smartphones that take pictures, and multipurpose PDAs that function as a
computer, phone, and camera are all readily available. This technology is so
pervasive that labeling it high-tech almost seems inappropriate. As the United
States Supreme Court said in its smartphone case of Riley v. California,1 “modern
cell phones … are now such a pervasive and insistent part of daily life that the
proverbial visitor from Mars might conclude they were an important feature of
human anatomy.” Indeed, as early as 1980, the rules governing civil trials were
changed to accommodate the extensive use of videotaping of deposition
testimony. As computer technology advanced during the 1980s, so did acceptance
of computer output as evidence in the courtroom. The computer as a method for
displaying evidence has become commonplace in the courtroom, with one of its
most useful aspects being the ability to create graphics easily. With the advent of
computers in court, charts, diagrams, and maps can be created quickly, cheaply,
and more accurately then ever before. Also, mass storage drives and disks in
computers, not to mention plug-in thumb or flash drives, have the capacity to
store photographic-quality images, full sets of documents in digital format, and
both video and audio digital presentations. These materials can be organized
utilizing sophisticated software programs for presentation in the courtroom,
where they may be projected or printed on paper or manipulated in a variety of
ways to enhance the effect on the judge and jury.

Page 450

As long as a complete foundation is laid for the introduction of such high-tech

evidence, it will usually be found admissible. First, the evidence must be relevant.
In deciding whether the photograph, video, or other items of evidence are relevant
and admissible, the judge must balance the relevance of the evidence against any
potential the evidence might have to unfairly prejudice the jury. Second, the
evidence must be authenticated in order to establish its source and accuracy.
Finally, the evidence must not violate the hearsay or some other exclusionary
rule. The requirements of relevance and authentication, both of which may be
called foundation, will be discussed in the following paragraphs as they relate to
photographic, recorded, and computer-generated evidence.

ON THE JOB

No law enforcement professional should minimize the value of photographs or

video recordings. The comments to the FRE state that photographs, charts, and
diagrams may be used even if a fact is not disputed. Therefore, if one has the
choice of whether to take many photographs rather than just a few, or to shoot
more video rather than less, one should always err on the side of producing too
much evidence.
First Rule of Admissibility—
Foundation for Relevance
Photographic or recorded evidence, to be admissible, must have some
nexus, or connection, with the facts of the case. In other words, the
evidence must be relevant. Showing relevance is the first step in laying a
foundation for the admission of any item of evidence. As stated in
preceding chapters, the rule of relevance requires only that the evidence
have any tendency to make the existence of any fact of consequence more
or less probable than it would be without the evidence. The operative
language is “any tendency.” The evidence need only help make the fact
somewhat more or less probable. Further, since in most states the fact to
which the evidence is directed need not be in dispute, illustrative evidence
is universally offered and admitted. This is so even if the fact illustrated or
amplified is proven by other evidence, even eyewitness testimony. Such
illustrative evidence may be admitted either to serve as background, to aid
the jury in understanding the facts illustrated or represented, or to depict
actual objects, persons, relationships, or events. The principle that a picture
is worth a thousand words usually prevails over attempts to keep these
forms of evidence from the jury.

The next step in the foundational inquiry is the balancing test, sometimes
referred to as legal relevancy. Even if the photograph or video is relevant,
the judge may decide it should not be admitted into evidence if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or the chance of misleading the jury. The judge
might refuse to admit the evidence based merely on the fact that he or she
thinks it would take up valuable time. Or the judge might feel that the
evidence could confuse the jury and find it inadmissible for that reason. If
demonstrative, such evidence must be carefully presented, so that it
enlightens the jury without overwhelming them or inflaming their passions.
When the video, photograph, or computer animation is used to prove the
existence of an object or a scenario, rather than as background information
or as a visual aid, the potential for unfair prejudice is even greater. For
example, if a jury is to use the photograph or video to determine a factual
issue, such as the likelihood that a particular knife caused the wounds that
killed the victim, the relevance of the photo or video is very great, but so is
the potential for the jury to have an emotional reaction. This does not mean
the judge should keep the photo or video from the jury. However, the judge
must decide whether, in that case, the jury can be expected to decide the
fact fairly if they look at the photo or video.

Page 451

A further distinction in the context of balancing for unfair prejudice is that

of color photographs versus black-and-white photographs. Since a color
photograph is intrinsically more vivid than a black-and-white photograph, it
may tip the balance against admissibility. The gruesome nature of the crime
may become more pronounced through the color photograph, inflaming the
jurors and preventing them from rationally considering all the evidence.
Thus, black-and-white photographs may save the evidence from exclusion
in certain situations if used instead of colored photographs, slides, or
videos.

Gruesome Photographs and Videos

An example in the context of the balancing test is a photograph of a murder
victim or of a person who has been subjected to aggravated assault. The
mere fact that a photograph may be unpleasant or gruesome to look upon
does not make it too prejudicial so as to be inadmissible. By its very nature,
the more gruesome the crime, the more gruesome the photographs that will
be admitted. (See the discussion of gruesome images in Chapter 13.)

For instance, the photograph may be so relevant that the danger of unfair
prejudice is outweighed by its probative value and hence is admissible.
Relevant photographs, despite their gruesomeness and potential for
prejudice, “generally will be admitted when they tend to prove such things
as the existence of a crime, the cause of death, the number and location of
the wounds, the manner in which they were inflicted, the amount of force
used, the willfulness of the act in question, a person’s identity, or to
corroborate evidence concerning an unusual cause of death.”2 Further, the
photograph may be the only piece of evidence; therefore, necessity would
compel its introduction. All of these considerations are within the trial
judge’s discretion. If the photograph is so repugnant and its potential for
inflaming the jury substantially outweighs its probative value, then the
judge will rule to exclude it from evidence. The law enforcement
professional must be aware of these considerations when investigating a
crime scene. Overreliance on this type of evidence can easily lead to the
loss of a case, should the judge rule the crime scene photographs
inadmissible.

ON THE JOB

When making a visual record of a grisly scene, one should keep in mind the
importance of minimizing the gruesomeness while not tampering with the
scene. For example, if a color photo is so gruesome as not to be admissible,
try converting the photo to black-and-white. Also, consider shooting the
scene in both black-and-white and color to begin with. With today’s digital
image cameras and processing software, converting color to black-and-
white is quite simple.

ON THE JOB

A mortal wound may be depicted in a photograph to aid the jury in

determining the cause of death or whether a particular object was the cause
of death. In such a case, the officer taking the photograph should take a
close-up of the wound so as to reduce the gruesome impact by framing out
the remainder of the corpse. Then, even if the photograph is in color, the
judge is more likely to conclude that the probative value outweighs the
potential for unfair prejudice.

Page 452

FYI

The photographs of the autopsies in the first criminal trial of O.J. Simpson
trial, depicting the bodies of Nicole Brown Simpson and Ronald Goldman,
were admitted into evidence and displayed to the jury in open court. This
was so, even though the scenes depicted were gruesome. In admitting the
photographs, Judge Ito rejected the defense’s argument that the
gruesomeness outweighed the probative value of the photographs as
evidence. Also, the defense asked Judge Ito to issue a special warning to the
jury to take care not to be emotionally swayed by the photographs. Judge
Ito refused to issue such a special instruction and, instead, told the jury, “In
evaluating the evidence that is presented to you in this case, I want to
instruct you that you must not be influenced by mere sentiment, conjecture,
sympathy, passion, prejudice, public opinion, or public feeling. Both the
prosecution and the defendant have a right to expect that you will
conscientiously consider and weigh the evidence, apply the law, and reach a
just verdict in this case regardless of the consequences.”3

Nude Photographs
The mere fact that a photograph reflects a part of a human body that would
not ordinarily be exposed to public view does not render it inadmissible. Be
aware, though, that, depending on the qualities of the subject matter
photographed, the prejudicial effect or the potential for confusing the issues
within the trial may preclude the admission of the photograph. For example,
the picture of a nude, mutilated body may overwhelm the jury’s emotional
stability while having such little tendency to make a fact of consequence,
such as intent, more or less probable that the judge would undoubtedly
exclude the photograph.

Some cautionary notes should be kept in mind when photographing nude

persons. If a homicide is discovered and the victim is nude, the scene must
be recorded just as it is. No effort should be made to cover any portion of
the body before the scene is properly photographed or videoed from all
angles. To preserve the dignity of the deceased or to prevent embarrassment
to relatives, it may be advisable to cover exposed sex organs. Such
photographs may be taken; however, photographs must also be taken of the
crime scene just as it is discovered. These initial, unaltered photographs are
quite important, as they may answer questions that arise during the trial.
Also, the chance of destroying other physical evidence or tainting evidence
generally while attempting to cover the body is always present,
necessitating the taking of photographs as the scene is discovered.

If, on the other hand, the victim of a battery is alive and there are injuries on
private portions of the body, certain precautions should be considered
before photographing such a person in the nude. Seldom, if ever, is a victim
of an attack permitted to display wounds on private portions of the body in
the courtroom. If these wounds are to be viewed by the court and jury, it
must be through photographs. Again, if the photographs are relevant to
show the extent and location of injuries received and are not unduly
prejudicial, they are admissible even though they are taken of a person in
the nude. However, those images that are not pertinent to the case may be
excluded for reasons of wasted time, cumulative evidence, and undue delay.
Thus, it is best that the private areas of the body be covered.

Page 453

Application Case

In 1993, in the first case in which rock superstar Michael Jackson was
under investigation for child molestation, one of the alleged victims
indicated that Jackson had a unique mark on his penis. Investigators from
the Santa Barbara County, California, Sheriff’s Department and the Los
Angeles Police Department obtained a warrant to search his body to
determine whether the description of Jackson provided by his alleged
victim was accurate. Jackson later described the search: “They served a
search warrant on me which allowed them to view and photograph my
body, including my penis, my buttocks, my lower torso, thighs and any
other area that they wanted. … It was the most humiliating ordeal of my
life, one that no person should ever have to suffer.”4 Jackson subsequently
chose to settle the case out-of-court, and the photographs were never made
public.

Obviously, the gender of the victim should determine the gender of the
officer taking the photos. If the photograph is of an exposed body of a
deceased person, then the gender of the photographer will be of less
concern. In all other cases, if possible, the gender of the photographer
should be the same as that of the person being photographed.
Second Rule of Admissibility—
Foundation for Authentication
The primary purpose of the introduction into evidence of a photograph or
recording is to give a clearer understanding of what happened in a particular
case and to assist the jurors in arriving at the truth. Thus, according to the
second rule of admissibility, the photograph or recording must be a true and
accurate representation of the matter depicted. This is the requirement of
the foundation of authentication or identification, which must be satisfied
for the evidence to be admissible.

Accuracy Is Required
To achieve accuracy, a crime scene should be photographed or videoed as
soon as possible after its discovery and before there have been any
alterations to the scene. To avoid later confusion, the officer must keep an
accurate record of all photographs, film, or video shot at the scene. If
objects have been removed, positions changed, or other items added, the
photograph or video will not be an accurate account of the scene and, being
inaccurate, may be excluded. Although some change in the crime scene
may not automatically lead to inadmissibility, if the change is such that the
explanation of the change is more confusing than clarifying to the jury, the
judge may refuse to admit such evidence showing the scene. This dilemma
can be avoided through effective authentication—showing that, even
though there are some differences, the item is still essentially an accurate
depiction of the scene in all important respects. Authentication is not as
complex as the term might lead one to believe. However, unless there are
injured persons or animals at a crime scene that require immediate removal,
no change should be made at the scene until it can be properly recorded by
photograph or video.

Page 454
Proof of Accuracy
There is no presumption that a photograph or recording is a true and
accurate depiction of the scene contained within it. There must be a witness
who can testify that the scene depicted or the sounds reproduced are true
and accurate. All that is required is testimony from a witness that a
photograph, a recording, an illustration, or computer output is what the
person offering it claims it to be. Thus, authentication is simply an initial
requirement that the photograph or video is a fair and accurate
representation of the thing it endeavors to explain. That does not mean it
must be perfect; it means that the audio or visual aid must not be confusing
or misleading, even if it is not identical in every detail. Courts were once
reluctant to accept in evidence any film or video that had been spliced, but
they are now more receptive to admitting film or video in which irrelevant
portions have been edited out.

FYI

When a document, photograph, recording, video, or other such matter

speaks for itself, this means that the witness attesting to its accuracy can do
only that and should not describe the photograph or video or the contents of
the writing. Technically, a witness’s testimony stating the contents of a
writing or describing the contents of a photograph violates the best evidence
rule, which provides that, when proving the contents of a writing, recording,
or photograph, the original must be produced, unless there is a good reason
for its nonproduction. The witness’s testimony of the detailed contents of a
writing or photograph is secondary, not primary, evidence, and therefore the
witness’s testimony is admissible only if the original is not available.

Photographer Not Necessary to Verify Accuracy

The attesting witness, that is, the person who can authenticate or verify the
accuracy of the evidence, may be anyone familiar with the scene or the
matter depicted. The witness does not have to be the photographer who took
the picture or the operator of the equipment that recorded the event. The
attesting witness need not have been present when the photograph was
taken. The only thing necessary is that the witness must be familiar with the
scene depicted in the photograph and be in a position to testify that it is an
accurate representation of that which the evidence purports to depict.

Although anyone familiar with a crime scene may verify the accuracy of a
photograph depicting the scene, the most logical person to verify its
accuracy is the person who took it. Although generally it is not important
how a photograph was taken, there are times when related questions arise.
Some judges have permitted questions about how a photograph was taken,
the conditions under which the picture was made, and the operation of the
equipment that the photographer used. Such questioning is usually allowed
under the contention that it is necessary to establish the accuracy, or lack
thereof, of the photograph. When such questions are permitted, the
photographer may be the only one who can supply the answers.

Page 455

MYTH FACT
Only the person who took a Anyone who can testify with knowledge
photograph, shot a video, or as to the accuracy of the contents of a
recorded a conversation can photograph, a video, or an audio
authenticate the photograph, recording is qualified to authenticate
video, or audio recording. such evidence.

ON THE JOB

The professional who shoots the photographs or videos at a crime scene

should record the following in personal notes and in the police report:

1. the equipment and procedures used;

2. the rationale for each choice and procedure; and

3. the conditions at the time the photograph or video was shot.

It may be months, or even years, before testimony regarding the evidence is
required, and recollecting details after so long may be difficult.

Generally, however, the method and equipment used in taking the

photograph are of little or no consequence. There is no legal requirement
that any particular type of camera be used. It matters little whether the
photograph was taken with an inexpensive, disposable camera or an
elaborate, professional model on film or on disk. The main requirement is
that the photograph should be an accurate representation. In general, better
cameras provide more detailed photographs, but distortions can occur
regardless of the equipment used.

Videos and computer-generated output also require testimony to

demonstrate reliability and accuracy; usually, anyone who can attest to the
fact that the depiction is fair and accurate will suffice. If a computer-
generated reconstruction is used, testimony to qualify the hardware and
software used may be necessary, as would be testimony to demonstrate the
reliability of the data used. Such complex authentication often requires
expert testimony. Evidence that is simply demonstrative, however, may
only require a witness who can testify that the evidence is fair and accurate
and will either aid a witness in giving testimony or aid the jury in
understanding testimony.

Photographer Need Not Be an Expert

There is no legal requirement that the photographer or videographer have
any particular amount of experience in photography or filmmaking for the
evidence to be admissible. An expert photographer or videographer is more
likely to get a better product under adverse conditions than an
inexperienced one, but the important thing is the accuracy of the
photograph or video and not the experience of the person who operated the
equipment. Remember, it is the veracity of the witness testifying to the
accuracy of the photograph or video that is of greatest importance.
Sometimes, however, depending on the circumstances, additional proof that
the operator was experienced and the camera or video equipment was in
good working order might be required by the trial judge. Such evidence
may also be persuasive to the jury.
Page 456

If, however, the evidence is computer-generated output or an X-ray, the

operator will usually be an expert or someone with special knowledge of
the equipment being used. Since such equipment is inherently complex, the
operator will usually be someone with special training and will have to be
qualified before being allowed to authenticate such high-tech data or
computer-generated evidence.

A nonexpert witness who has taken a photograph or made a video should

not attempt to provide a technical explanation of the photographic or
videographic process. Technically, the witness need only testify that the
scene is accurately depicted. Even qualified witnesses need not answer
technical questions concerning shutter speeds, refractions, and other
esoteric subjects, unless they are being qualified as an expert witness. If
such a line of questioning is objected to, the judge will usually direct that it
be discontinued. Normally, the judge will admit or reject photo or video
evidence for reasons other than the experience and qualifications of the
operator.

Even experienced photographers will usually avoid being qualified as a

photographic or videographic expert. This is not often necessary for the
photographs or videos to be introduced into evidence. The more technical
and complex the testimony becomes, the more likely the judge or jury will
discount it. Also, the professional may be placed in an embarrassing
position, should the photographs be ultimately rejected. This does not mean
that the prosecuting attorney may not show that the professional has
considerable experience in photography or video making when attempting
to impress the jury with the weight of the evidence; however, there is a vast
difference between proving ability in photography and filmmaking and
qualifying a witness as an expert.

Frequently, a law enforcement professional will verify the accuracy of a

photograph or video by stating that he or she knows that it is an accurate
reproduction of the crime scene because he or she took the picture. Or the
professional may testify that he or she was present when the picture was
taken and that the photograph fairly and accurately depicts the scene.
However, at times, the person who took the photograph will be unable to
attest honestly that the photograph or recording is accurate, simply because
the person does not remember taking the photograph. To avoid this
situation, the law enforcement professional must ensure that he or she can
identify the photograph or recording later. This may be done in one of three
ways. First, the photographer may maintain complete possession of the
photograph or recording until it is produced in court. Second, the
photographer may maintain a chain of custody, or possession, of the
photograph or recording. Third, the photographer may place some
identifiable object within the scene depicted.

MYTH FACT
Because of the ease with
Anyone can lay the foundation to admit an
which digital images can be
image or a recording merely by testifying that
manipulated, a digital image
it is what it is claimed to be and fairly and
or recording must be
accurately represents the scene or records the
proven, by some special
images or sounds. Even though alteration is
witness, not to have been
possible, it is up to the jury to decide, if the
altered. The actual
claim is made, whether the witness attesting
photographer or recorder
to accuracy should be believed. It might, in
must testify and say that he
some cases, enhance credibility for chain of
or she produced the image
custody evidence to be introduced, but it is
or recording without
not required by the law.
tampering with it.

Page 457

Foundation by Chain of Custody, or Possession

Aside from a witness testifying to its accuracy, another method of
authenticating a photograph or recording is to present evidence showing
that the photograph or recording has been in the constant custody, or
possession, of one or more persons and that the evidence is in the same
condition as it was originally. This showing of chain of custody was
discussed in Chapter 13. This method for laying the necessary foundation is
especially helpful when the photograph cannot be easily identified or when
the potential for interference with the evidence is present. When the
photograph, video, or X-ray can be easily identified, testimony by a witness
as to its accuracy is normally sufficient. Most photographs and videos today
are produced digitally on some form of media that can be logged in for
maintenance. In such case, the disk, flash card, or other memory media may
be held for chain of custody purposes.

FYI

Laying a foundation to identify an object as the thing it is claimed to be

rarely poses any problems. If the object is unique or is made unique, then
most identification difficulties will be bypassed. For this reason, when a law
enforcement professional marks an object, including photographs, with his
or her initials, the date, or another distinctive characteristic, the object is no
longer fungible with other, similar objects and can be readily identified both
in-court and out-of-court. If the item is different enough, then no continual
possession or chain of custody may be required to lay the foundation for
identification.

Foundation by Distinctive Characteristic

Perhaps the most practical means of identifying a video or photograph as
the one the professional took is to place an object with a distinctive
characteristic within the crime scene before shooting the photograph or
video. Placing an object in the scene may seem contrary to the admonition
about taking a photograph of a crime scene before any changes are made to
the scene. If, however, the recognizable object is intelligently selected and
carefully placed within the camera range, no difficulty should be
encountered in having the photograph admitted in evidence. The object
placed in the scene should be clearly placed there for identification
purposes and not be something that may be confused with a part of the
crime scene. The object itself will create a distinctive characteristic within
the crime scene, thereby identifying the video or photograph as the one the
officer shot.
In placing an object in the crime scene for identification purposes, four
matters must be considered: (1) What should be used? (2) Where should it
be placed? (3) What identification data should be included? (4) Should
measurement devices be placed at the scene?

Page 458

What Should Be Used for Identification Purposes

It is very helpful, when preparing to photograph or video record a scene, to
place in the frame an identification card to indicate details of what is
shown. It should be obvious to the viewer that such an object is for
identification purposes only and is not a part of the crime scene itself. When
the photograph or video is taken close to the scene or article (for example, a
footprint), a small, 3-by-5-inch card with proper notations on it may suffice
as an object for identification purposes. A business card giving the law
enforcement professional’s name and department placed in the close-up
scene would also be acceptable.

Where the Object Should Be Placed

The identification card should be strategically placed in the scene
photographed or recorded. The photographer should be particularly careful
when the scene must be searched for evidence because any intrusion into
the scene for purposes of placing the identification card or other object may
result in evidence being tainted or destroyed. It is not necessary that the
identifiable object be placed in the center of the picture. The preferred
practice is to place the identification card or object within camera range in
either the lower right- or left-hand corner. Even if the card or object is
slightly out of focus, it will not affect the identification of the photograph or
video. Also, the card or other identifiable object should be carefully placed
within the scene to avoid a possible allegation that it is hiding some detail
of the crime scene. Such a problem can be avoided by first photographing
or recording the scene at a distance and incrementally moving forward in
order to show greater detail, advancing the identification card into the scene
as additional photographs are taken. Under no circumstances should
identification information be added digitally after the photographs have
been taken. No matter how innocent, a response to the question “Did you
add any information to the photograph after you left the scene?” could
result in the photograph being inadmissible or could shed doubt on the
accuracy of what was depicted.

What Data Should Be Included on the

Identification Card
The identification data written on the card placed in the crime scene should
be kept to a minimum. Actually, all that is necessary is enough information
to identify the card or object as the one the professional placed in the scene.
Keeping in mind the original purpose of this card, to facilitate identification
of the photograph or video, all that is necessary is the officer’s handwritten
initials on the card or object. The professional may also include the date, the
time, and the case number, if known, on the card or object. Any additional
information may lead to problems for the professional at the time of trial.

If the exact time cannot readily be determined, it is proper to record the

approximate time. Accuracy in recording data is the guiding rule, but an
approximation is allowable if an exact reading is impossible. Usually, the
time of day has little or no value as far as a video or photograph is
concerned. Testimony to an approximate time is normally more than
satisfactory. Many cameras have a time stamp automatically imprinted on
the film or recording at the option of the user. In such a case, the
photographer or videographer should be certain that the timer is set
properly; if it is not, the time should not be imprinted. Inaccurate time
stamping can cause substantial difficulties at trial, especially if a clock
within camera range or other evidence in the case shows a different time.
For example, in the first O.J. Simpson criminal trial, the videotape of
Simpson’s bedroom, failing to depict a pair of socks the prosecution
claimed were present in the bedroom at that time, had a time stamp, which
the camera operator testified was incorrect. This raised a question of
whether the socks, which contained blood, were planted. This discrepancy
led to great difficulties in substantiating the prosecution’s case and allowed
the defense to buttress its argument that the evidence was tampered with or
otherwise tainted.

Page 459

Including any statement on the card or object about the kind of crime
involved could prove disastrous, since the actual charge for which the
defendant is tried may not be the one initially indicated. For example,
consider a situation in which the word “suicide” has been included on the
data card, but the death is later determined to be a homicide. Photographs or
video marked with the word “suicide” would then have to be offered as
evidence in the trial of the defendant for murder. Such a mistake does not
render the evidence inadmissible, but it does create a needlessly
embarrassing situation for an officer and could result in confusion at trial.
Another example of this type of blunder is a set of crime scene photos with
the notation “robbery-rape” written on the identification card within the
photographs, but the accused is later tried only for robbery. Because any
reference to an uncharged rape could inflame the minds of the jury, the
photographs might be excluded from evidence.

Numbering on the photographs taken at the crime scene, placed there either
by criminalists or by the officers taking the photographs, can also lead to
unnecessary problems. Should all the photographs not be produced in court,
the defense attorney will be able to make an issue of the seemingly missing
evidence. As a practical matter, there is no legal rule requiring that all
physical evidence or all witnesses who have some knowledge of the case be
produced during a trial. In most instances, a photographer will take more
photographs than are necessary, attempting to ensure that the scene is
photographed from all angles or to ensure that the equipment has not
malfunctioned. Such circumstances can, of course, be easily explained.
Also, should the issue arise, the additional photographs could be produced,
placing an even greater emphasis on the subject at issue. However, to avoid
the placement of numbers in the photographs, the sequence of photos made
can be recorded in the photographer’s field notes. Also, contact sheets and
prints of the negative strips can help record and document the
photographer’s progress through the crime scene.
Placement of Measurement Devices in the Scene
The size of an object, a hole, or an opening depicted in a photograph may
be of particular significance. The most practical way to show size is to
place a ruler or other standard measuring device near the object or opening
photographed. Some departments have adopted a gummed tape upon which
a standard measure in inches is printed. This device is particularly
advantageous when small objects are to be photographed. In placing the
measuring device beside any object, the device should be positioned such
that there is some space between the object and the measuring device. This
helps overcome any allegation that something was being hidden. Such a
space need be only slight.

Page 460

Also, there should be no advertising matter or other written data on the

measuring device except for identification data, such as the officer’s or
criminalist’s initials and the name of the department.
Posed Photographs and Video
Recordings
A crime scene should be captured by photograph or video as soon as
possible after discovery and before any changes are made in it. However,
there are times when a photograph or video cannot be taken before
alterations are made in a crime scene or before objects are moved. When
circumstances dictate, an effort can be made to reconstruct the scene as
closely as possible to its original state. This is referred to as a “posed,” or
“artificially reconstructed,” crime scene. For example, if a dead body has
been removed, someone might assume the position of the body in the
photograph. Similarly, if a gun has been moved at the crime scene, it can be
replaced in its original position, as nearly as possible, for the photograph.

There is no rule stating that such a reconstructed video or photograph is

inadmissible. Such evidence is, however, generally regarded with disfavor
in light of a strong perception that posed pictures may mislead the jury.
Questions may arise during the trial over the exact position of the victim’s
body or the exact location of the gun. When people, automobiles, and other
objects are placed to conform to witnesses’ descriptions of the original
crime or collision, difficulties often result. Posed, or artificially
reconstructed, scenes may be admitted when the positions of persons and
objects are undisputed. However, if a posed photograph or reconstructed
video portrays only the version of the facts supported by the testimony of
the proponent’s witness, then it will generally be inadmissible. The problem
in such a situation is the tendency of the photograph or video to emphasize
unduly only one side’s testimony. This could result in the jury taking one
party’s reconstruction as the fact of what really occurred. Even worse, the
jury might consider such conduct an attempt to tamper with evidence,
holding it against the presenting party’s case.

Nevertheless, there are times when only relative positions or locations of

objects in a crime scene are of importance and a reconstructed scene filmed
or recorded for this purpose, if properly explained, would be admissible.
Someone who saw the original crime scene must still testify to the accuracy
of the reconstructed scene. If a posed photograph or video is taken, and if
the original object or an exact duplicate cannot be used, something entirely
dissimilar can be used instead. This often helps avoid confusion on the part
of the jury. For example, if there was a gun in the actual crime scene, and
another gun of a different make or caliber is placed in the staged scene, the
jury may have difficulty in distinguishing between the gun used in the crime
and the one captured on film. If, however, a stick or other marker is used,
the jury can quickly determine that it is the position of the object, not the
object itself, that is important.
Page 461

Methods of Presentation in the

Courtroom
Photographic Prints as Evidence
Photographic prints, whether black-and-white or color, need not be of any
particular size as a matter of law. However, the law enforcement
professional should be aware that the jury must be able to examine the
evidence easily; therefore, a large blowup of the photograph may be most
useful. The generally accepted size is an 8-by-10-inch enlargement. This
size print has certain advantages. It is large enough to bring out sufficient
detail, it is easy for the jurors to handle, and it fits conveniently into the
court file. Even more effective are overhead projections, using
transparencies, video projection, or computer-assisted projection, onto a
screen large enough for everyone in the courtroom to see. Such images may
also be delivered to a monitor placed before the witness, jury, judge, and
lawyers. Many courtrooms have equipment allowing such delivery of
images. Presentation of images by projection is the preferred method, and
most courtrooms will accommodate bringing in portable equipment if the
courtroom does not have permanently placed equipment.

Demonstrative Diagrams, Charts, and Boards

If a print is to be used by a witness during testimony to point out or explain
certain facts, such as fingerprint comparisons or blood trace evidence, the
print should be enlarged to a size that can be readily seen by the jury as they
are seated in the jury box. Perhaps the most practical method of doing this
is to have the prints blown up to an appropriate size and attached to a large
board, i.e., a demonstrative board. This will allow easy handling of the
prints so as to place them in the optimal position for viewing by the jury.
Explanatory notes may be attached, so that the jury can quickly decipher
what each print is and what it relates to. The prosecutors in the nanny trial
in which Louise Woodward was charged with homicide in the death of the
baby she was attending made use of such demonstrative boards, which were
used to depict trauma to the baby. In addition, blown-up images and
demonstrative boards or computer-generated slide show presentations can
be extremely practical when the jury must evaluate a comparison, such as
that between a latent fingerprint and a known exemplar. Even in the case of
fingerprint comparison, such a visual aid is effective, as the jury can see for
themselves the similarities between a latent print and that of the accused.
Although the jury may be completely unfamiliar with fingerprints, they are
still able to appreciate the depicted similarities.

ON THE JOB

Not all trials can be supported by the resources used in high-profile cases.
Nonetheless, the use of diagrams and other visual aids is critical to the
effective presentation of the facts to the jury. Therefore, all law enforcement
professionals should endeavor to create diagrams depicting the events from
the inception of any investigation or report. A witness who can produce a
diagram usable at trial is especially appreciated. A witness who can draw an
effective, large-scale diagram should use that method, but the possibility of
using overhead projectors to blow up images, or computers to generate
images, should be considered as well.

Page 462

Projected Images
Projected images are extremely helpful to present graphics and written
words on a large screen. Transparencies are most commonly used with
“overheads.” Transparencies are see-through sheets with imprinted text or
images, which are simply placed on the overhead projector and then
projected onto a screen. A unique quality of transparencies is that the
operator can write on the transparency or point to specific aspects of the
transparency from the overhead projector.
In addition, images may be projected overhead from a variety of sources
other than transparencies. Video cameras may be linked directly to a
projector to transmit an image onto a screen in the courtroom. A computer
may be used to transmit images from a video source or an image contained
on a flash drive, CD, DVD, or hard drive. Furthermore, computer-generated
animations can be projected onto overhead screens or onto a video screen in
the jury box. Any of these projection methods achieve the same result. They
give the jury a sense of the image depicted in the scene.

The televised trial of O.J. Simpson in 1994–1995 introduced the world to

the “courtroom of the year 2000.” In that case, Judge Lance Ito and
attorneys Marsha Clark and Johnny Cochran repeatedly asked something
called ELMO to carry out various tasks. They were referring to a
sophisticated, integrated, computer-controlled projection system, which
included a visual presenter made by ELMO Manufacturing, a company
located in Chatsworth, California. The ELMO visual presenter is a top-lit
video camera mounted on a pole, pointing down, that looks much like a
photographic enlarger. It transmits the image it receives onto a monitor.
“ELMO” is an acronym that stands for “Electronic Light Magnetic
Optical.” ELMO was only one of the many components of the advanced
systems used in the Simpson trial. The courtroom equipment in Los
Angeles County consisted of both hardware and software: two video disk
systems (one for the prosecution and one for the defense); Microsoft’s
PowerPoint presentation software program; two Invizn presentation systems
(a proprietary computer-based document presentation system, one each for
prosecution and defense); one ELMO visual presenter; one videocassette
recorder; one Sony Video Printer (a special printer that prints telestrated
video to special paper); one Point Maker Telestrator; computer-controlled
integration of all these inputs (using Interactive Presentation Solutions
software); two 20” Sony monitors on the floor for four of the jurors; one
84” parabolic screen; one Marquee 8000 data projector; and monitors for
Judge Ito, the witness, and the attorneys. All of the computer-generated
signals, both video and data, were strung through a switcher that controlled
the projector and monitors for the jury (one output) and monitors for the
judge, witness, and counsel (another output). The output seen by the jury
was also transmitted to the media and was controlled with a kill switch by
Judge Ito. The controller system was put in place and operated by Trial
Presentation Technologies of Culver City, California, at an estimated cost of
about $500,000, which was donated to Los Angeles County by the
company. The estimated cost of all equipment use and services by the court,
prosecution, and defense was $1.5 million.5

Since the Simpson trial, the use of simpler devices, known as visual
presenters or document cameras, has become common, if not widespread. A
document camera is a device that resembles an overhead transparency
projector. However, the document camera can project any object placed on
its surface and can connect to other devices, such as computers. Although
the ELMO and all its peripheral equipment used in the Simpson trial were
extremely costly, a document camera and video projector are comparatively
inexpensive. Today’s visual presenters, including ones marketed under the
ELMO name, are very small devices that can be purchased for about $400
and fit easily on a desk.

Page 463

Many courtrooms are outfitted with smart podia that link to computers,
document cameras, video projectors, and video players, all within the
control of counsel and the judge. This equipment can be utilized by
integration into sophisticated programs enabling the lawyers to present
evidence in a multimedia format. Even if a courtroom is not so outfitted,
when a case is important enough, portable equipment can be brought into
the courtroom to achieve the same result.
Consideration of Other Matters
How Many Photographs Should Be Taken
The amount of video captured or the number of photographs taken for
evidentiary purposes has no fixed number, nor are there any criteria for
what should be captured on film. The video or photographs of a crime scene
should thoroughly and accurately record all the information available.
Undoubtedly, the more serious the crime committed, the more the crime
scene should be recorded or photographed.

The documentation of crime scenes and crime scene investigations by video

or digital recording has become a matter of routine for many police
departments. In high-profile cases, the media may be present and recording
much of the crime scene activity. Thus, it is prudent for the officer to make
as accurate a record as possible of law enforcement activities to preserve the
integrity of the scene and the evidence contained therein.

In a homicide case, it may be a good idea to include a scene of the general

area where the homicide took place. If the homicide was committed in a
residence, a photograph or video of the street in front of the house is often
used advantageously during the trial. The exterior of the house itself should
be filmed, as well as an overall shot taken of the room in which the
homicide actually took place. A video and photograph should be taken of
the body, showing the exact position in which it was found and its location
in the room, and close-up shots should be taken of the body depicting the
wounds. Further shots should be taken of all other pertinent objects that may
have a connection with the crime, including possible entrances and exits.

In a traffic accident case, at least one picture should be taken in the direction
in which each vehicle was traveling. A video or photograph should be taken
showing the visibility of the drivers as they approached the point of impact.
Close-up shots should be taken of the damage to the vehicles and of skid
marks, if any. Skid marks may be recorded better from the direction
opposite from which each vehicle was traveling. This is because skid marks
are usually more pronounced nearer the point of impact and can be more
clearly followed going against the line of tread.

Preparing Photographs, Videos, and Computer

Output for Trial Use
Before going to court, the law enforcement professional who is going to
testify should review the photographs, videos, recordings, and computer-
generated evidence that the prosecution plans to introduce. The professional
should make certain all the evidence needed is available and that
photographs have been properly printed, videos and other recordings
properly edited, and computer output accurately portrayed.
 A document camera, which can project any object placed on its
surface, is a very versatile multimedia projection device in the
courtroom.

Guy Cali/Getty Images

Page 464

It is permissible for the officer who will be asked to introduce photographs

or a video in evidence to initial the tape cassette or disk or the back of the
prints before their introduction. In fact, this initialing is advisable unless
there is some identification within the video or photograph itself that will
enable the officer to recognize the photographs or video readily on the
stand. In the case of prints, no marks should be placed on the face of the
photograph before it is shown to a witness on the stand. If it becomes
necessary to point out something on the photograph by marking it, this
should be done from the stand while testifying. “Retouching,” or altering, a
negative or a print renders the evidence inadmissible. This does not apply to
editing irrelevant portions, done only at the direction of the prosecuting
attorney. This does not imply that portions of a negative may not be cropped
when an enlargement is made to bring out details. There is no legal
requirement that every print must include the entire negative. However, it is
recommended that one print of the entire negative be prepared, should there
be an allegation of excluding or hiding evidence or of changing the
appearance of a scene.

Photographic, Video, Software, and Equipment to

Be Used
The kind of camera, lenses, video recording media, software, or equipment
used is relatively unimportant in most law enforcement uses. In the case of
computer-generated output, however, the accuracy of name-brand
equipment and commercially available software may be verified more
readily than little-known equipment and software. In fact, judicial notice
may be taken of its accuracy. With respect to videos and photographs, the
main objective is to get as good a representation of the thing photographed
or recorded as possible. This can best be accomplished by standardizing the
camera, video recorder, or memory media used. Through standardization,
officers become familiar and proficient with the equipment.
X-Ray Photographs
X-ray photographs fall within the definition of photographs under the FRE,
but they require more in the way of introduction than do ordinary
photographs. X-ray photographs involve a technical field and depict that
which is not visible to the eye. These photographs must be introduced
through an expert witness, usually the person who took the photographs.
The competency of the witness, as well as the accuracy of the machine, will
have to be established. Also, the procedure for taking the photographs may
have to be explained. Usually, the X-ray photographs will have to be
interpreted by another expert witness who is capable of reading them.
Page 465

Review and Application

Summary
1. The FRE defines the terms “writings” and “recordings” as letters,
words, or numbers, or their equivalent, set down

in any form for

writings or recorded in any

manner for recordings.

2. Video or audio evidence may be used by the jury in deciding facts as

substantive evidence. Or such evidence may be used solely to illustrate
testimony given by a witness as demonstrative evidence.

3. If there is any question about an image’s admissibility into evidence,

the judge must decide that question before the jury can see the image.
In such a case, a hard copy of the image is useful to present to the
judge. Also, a hard copy is good to present to the jury for their
individual viewing and to take into the jury room for deliberations.
The advantage of using projected images is that the large images on
the screen can be viewed by the entire jury at once.

4. Here is a partial list of the uses of photographic and recorded evidence:

(1) to show the scene of any incident, including the crime scene; (2) to
demonstrate a theory as to how events occurred or might have
occurred; (3) to record the behavior of a party or witness; (4) to
document surveillance of an individual; (5) to record police lineups,
identification procedures, and the act of identification itself; (6) to
record the activities of those being investigated for driving under the
influence, including the administration of field sobriety tests; (7) to
 record interviews of suspects, witnesses, or victims; (8) to record
depositions or to preserve testimony; (9) to record criminal
confessions; and (10) to record or generate crime re-enactments and
accident re-creations.

5. The first rule of admissibility of photographic and recorded evidence is

that the evidence must be relevant.

6. Relevant photographs or videos, despite their gruesomeness and

potential for prejudice, will usually be admitted when they tend to
prove such things as the existence of a crime, the cause of death, the
number and location of the wounds, the manner in which they were
inflicted, the amount of force used, the willfulness of the act in
question, or a person’s identity or to corroborate evidence concerning
an unusual cause of death. When it is necessary to prove the manner of
death or extent of injury in an assault case, even photographs or videos
of nude bodies may be admissible over objection.

7. According to the second rule of admissibility, the photograph or

recording must be a true and accurate representation of the matter
depicted.

8. To authenticate a photograph or recording, the witness must be able to

testify that the scene depicted or the sounds reproduced are true and
accurate.

Page 466

9. The three methods of authentication other than by attesting witnesses

are (1) maintaining complete possession of the photograph or
recording until it is produced in court; (2) maintaining a chain of
custody of the photograph or recording; and (3) placing an object with
a distinctive characteristic in the scene depicted.

10. The data that should be included on the identification card should be
limited to that which is minimally necessary for authentication and
identification, such as the officer’s initials, the date, and perhaps the
time.
11. Although posed, or reconstructed, scenes are inadvisable, they may be
acceptable when photographs or video cannot be shot before the crime
scene is altered or objects are moved. The scene must be reconstructed
as closely as possible to its original state.

12. The methods of presentation include photographic prints;

demonstrative diagrams, charts, and boards; overhead projectors and
transparencies; and other projection devices in a high-tech courtroom.

Key Terms
writings and recordings 446

photographs 446

substantive evidence 447

pictorial testimony 447

silent witness 447

foundation 450

relevance 450

balancing test, or legal relevancy 450

attesting witness 454

chain of custody 457

distinctive characteristic 457

identification card 458

ELMO 462

Questions for Review

 1. What types of evidence are included in the terms “writings” and
“recordings” in the FRE?

2. Under what circumstances may video and audio evidence be used in

court?

3. What factors should be considered when deciding whether to use a

hard copy or a projected image in presenting evidence?

4. What are the various uses of photographic and recorded evidence?

5. What is the first rule of admissibility of photographic and recorded

evidence?

6. When is a photograph or video likely to be admitted even if it depicts a

gruesome scene or a nude person?

7. What is the second rule of admissibility of photographic and recorded

evidence?

8. Who can be called as a witness to authenticate a photograph or

recording?

9. What are the three methods of authentication of photographs and

recordings other than by an attesting witness?

10. What data should be included in the identification card placed at a

crime scene for photographing?

11. When is a posed, or reconstructed, scene acceptable?

12. What are the various methods of presentation of photographic or

recorded evidence in court?

Page 467

Thinking Critically About Evidence

 1. A defendant is on trial for murder. The victim was stabbed to death
with a serrated knife. A serrated knife, which the prosecution claims is
the murder weapon, was found in the possession of the accused and
has been admitted into evidence. The prosecutor wants to introduce a
color blow-up of a photograph of the part of the victim’s body bearing
the wound, taken at the morgue during the autopsy, so that the jury can
see that the wound was caused by the claimed murder weapon. The
prosecutor also wishes to project the image of the photograph on a
large screen in the front of the open courtroom. What do you think the
judge will allow into evidence? Will the prosecutor be able to use the
photograph, the projected image, or both?

2. In the case of a particularly heinous and gruesome crime, the

prosecution may feel that the jury should see all the photos related to
the crime to impress upon them the viciousness of the crime. Explain
how this strategy could backfire for the prosecution.

Workplace Applications
1. You are the investigating officer in an armed robbery case. The victim
has just attended a lineup, where she picked a suspect from a group of
six individuals. You took a photograph of the persons standing in the
lineup just at the moment the victim made the identification. Write a
brief report of the event and describe what you would do to ensure that
the photograph could be used in court to prove the identification and
the authentication process.

2. You are the investigating officer at the scene of a homicide. The victim
is lying naked on a bed, with a rope around her neck, apparently
having died of strangulation. You are charged with photographing the
scene. Make a list of photographs you need to take and how you will
identify them later in court.

Endnotes
1. 573 U.S. 373, 385 (2014).
 2. 2 Handbook of Fed. Evid. § 401:7, text accompanying n.27 (8th ed.
2018).

3. People v. O.J. Simpson, 1995 WL 350931, pp. 15–16 (Cal. Super.

Trans., June 6, 1995). Westlaw has deleted this database, so this
document is no longer available.

4. Los Angeles Times, December 23, 1993, p. 1, 1993 WL. 2239535.

5. The source of this information regarding the equipment and software

used in the O.J. Simpson trial was Adam Matthew Ormond, Partner,
Trial Presentation Technologies.

Design Element: ©Ingram Publishing

Page 468

15

How to Testify Effectively

POOL/Getty Images

Page 469

Chapter Outline

The Law Enforcement Professional’s Role

 Problems of the New Professional: Notification to Appear

What to Do Before the Trial

What to Wear in Court

Where to Appear and What to Do

Conduct Before and During the Court Session

Conferring with the Prosecuting Attorney

Being Called to the Stand

On the Witness Stand

Voice and Grammar

Profanity and Vulgarity

Jargon

References to the Accused

Answering Questions on the Stand

When the Witness Forgets Testimony

Cross-Examination

After Testifying

Review Case After Verdict

Review and Application

Chapter Objectives

This chapter considers matters relating to the officer’s appearance in court to

testify. After reading this chapter, you will be able to:
Name the different methods used to notify a law enforcement professional to
appear in court.

Describe the appropriate clothing for law enforcement professionals to wear

to court.

Identify those people to whom the law enforcement professional should not
speak during recesses.

Explain what a law enforcement professional should do while testifying with

respect to objections.

State what a law enforcement professional should do when he or she does

not remember the answer to a question asked.

Explain what a law enforcement professional should do when asked an

argumentative question on cross-examination that the defense attorney
insists should be answered yes or no.
Page 470

The Law Enforcement

Professional’s Role
The law enforcement professional plays a key role in the successful
prosecution of a criminal defendant. During the investigation of a crime,
officers interview witnesses, preserve the crime scene, and collect physical
evidence, all of which are essential in proving a defendant guilty beyond a
reasonable doubt at trial. In some jurisdictions, criminalists or crime scene
investigators perform some of these functions. Sometimes these
investigators would like to avoid appearing in court and testifying—usually
with good reason. They are called to court on their days off, required to
cancel or cut their vacations short, or have to give up their precious hours of
sleep to be in court. Also, many officers and other law enforcement
professionals, like most witnesses, are apprehensive about appearing in
court. Nonetheless, these witnesses must overcome all of these difficulties
and do their best when this all-important final phase of the criminal process
is at hand.

Most witnesses are nervous about testifying. Testifying in court is a new

and strange experience for most people. Even people with the most
outgoing personalities may feel conspicuous and uncomfortable on the
witness stand. There is the potential of being embarrassed by cross-
examination questions, contradicted by other witnesses, or unable to
remember important details. Just the fact that the attention of the entire
courtroom is focused upon the witness is enough to intimidate most people.
The law enforcement professional is not immune from these worries, and a
new officer may be especially apprehensive about his or her first few
appearances as a witness. Even the most experienced witness may feel
some tension when called to testify if a case has an unusual fact pattern or is
difficult to prove, or if the defendant is very sympathetic. What the witness
says on the stand and how it is said may make the difference between a
conviction and an acquittal.
However, most fears can be eliminated by observing a few rules on how to
testify effectively and convincingly. It is impossible to list everything a law
enforcement professional should know to become a good witness or to
explain every situation that may arise during the trial proceedings, but one
very simple rule, the most important one, will eradicate most of a witness’s
worries. Testify truthfully. Even if an officer has failed to follow department
procedures fully, being truthful is still the best course. Failure to own up to
mistakes can lead to being tripped up on cross-examination and cause even
more damage. The professional who tells the truth will not have to be
concerned about being tripped up on cross-examination, being contradicted,
or not having his or her testimony corroborated by other witnesses. The
witness’s role is to tell whatever he or she knows about the facts, and an
officer who testifies truthfully, fully, and fairly about what he or she
observed should have nothing to fear and should be comfortable in any
courtroom setting.
Problems of the New Professional:
Notification to Appear
A new law enforcement professional needs to know many basic, but
important, details about testifying in court. For example, a novice officer
may have several questions about being called to testify: What do I wear?
Where do I appear? What do I do when I get there? What do I take with
me? These questions will be addressed in this chapter.

Page 471

As pointed out in Chapter 5, prospective witnesses are usually notified that

they are to appear in court by having a subpoena served on them. The
subpoena tells them where and when to appear in court. There are several
ways a law enforcement professional may receive notification to appear in
court to testify. He or she may receive a subpoena, the same as any other
witness. The subpoena will have the date, the time, the courtroom that the
witness should appear in, and whether the witness is on-call or should make
a personal appearance. Being on-call means that the person is not needed to
appear personally in court unless called by the prosecutor. The witness
should remain close to the courthouse, so that he or she can be there quickly
if the prosecutor calls. When on-call, the witness should provide the
prosecutor or court clerk with a phone, cell phone, or pager number where
the officer can be reached when needed.

The defendant’s name and case name should appear on the subpoena,
allowing the professional to begin preparing for the case. The officer may
be served directly with the subpoena or, if the department is large enough,
through a subpoena control department. The subpoena control department
accepts subpoenas for all the department’s officers. The watch commander
or supervisor and the officer are notified of the service. The supervisors can
then rearrange the schedule to accommodate the officer’s time in court.
The law enforcement professional may not receive a subpoena at all but
may merely receive a call from the prosecutor, advising that he or she is
needed as a witness in a particular case. Many prosecutors believe that the
formality of having a subpoena issued for a law enforcement professional is
unnecessary. The usual advantage of serving a prospective witness with a
subpoena is that the subpoena is a court order demanding the presence of
the person in court as a witness. This is not necessary with a law
enforcement professional, as he or she will appear without being compelled.
On the other hand, in heavily populated areas, prosecuting attorneys may
find it convenient to have subpoenas issued for all witnesses, including law
enforcement professionals. The prosecutors thus eliminate individual calls
to the people involved and are less likely to overlook a necessary witness.

ON THE JOB

One of the best preparations for a new law enforcement professional who
has never before testified is to attend a number of trials and observe others
testifying. After just a few witnesses have been observed, what constitutes
“good” testimony and “bad” testimony should become apparent.
What to Do Before the Trial
Upon receipt of notice to appear as a witness, one should do a number of
things before the court date. While the prosecutor’s office is preparing for
trial, the law enforcement professional must give all the facts of the case to
the prosecutor, even facts revealing weaknesses or problems in the case. All
facts surrounding the execution of a search warrant, arrest, collection and
analysis of evidence, and interrogation of the defendant should also be
discussed with the prosecutor. It is dangerous to ignore portions of the case
in the hope that the case can be successfully prosecuted without these facts
coming out.

Page 472

Next, the prospective witness should completely refamiliarize himself or

herself with the facts of the case prior to trial. Usually, a considerable
period of time elapses between the investigation and the related trial. The
individual has usually investigated numerous other cases in the interim and
will find it impossible to remember all the details that must be related
during testimony unless the case file is reviewed. The officer should
ascertain from the prosecutor just what he or she is expected to testify
about. A new officer should discuss the case with his or her partner or
superior officers, who will be able to give advice on how to present the
facts and physical evidence effectively. If the officer, criminalist, or other
law enforcement professional is going to testify about the collection of
evidence or the analysis of physical evidence, the witness should be
familiar with the test conducted as well as the specific results. At a
minimum, an officer or a criminalist who may be qualified as an expert to
conduct certain tests, such as blood analysis, fingerprint comparison, DNA
testing, fiber content analysis, or soil testing, should review with his or her
supervisor the types of questions that can be expected to elicit why the
witness is qualified to run the tests and interpret the results.

If the professional is responsible for the introduction of physical evidence,

he or she should check the evidence locker to make certain the evidence is
available and should prepare it for proper presentation. Necessary
arrangements should be made, so that the law enforcement professional is
available on the trial date; nothing, including vacations, should interfere
with being in court on the date and at the time scheduled. The officer may
need to change shifts and make certain his or her superiors are notified of
the subpoena, so that the officer’s normal assignments are covered during
the court time.
What to Wear in Court
The moment a witness enters the courtroom, whether he or she is a law
enforcement professional or not, the jury begins to make its appraisal of the
person. Overall appearance—particularly the manner of dress—makes the
first impression, and the first impression may be a lasting one that
overshadows even the witness’s testimony. The law enforcement
professional should not handicap his or her testimony by wearing
inappropriate attire to court.

The general rule is to wear to court what one wears to work. If the officer
wears a uniform to work, then that is what he or she should wear to court. If
the officer is a detective or other professional or in some other unit that does
not require that uniforms be worn, then business attire is appropriate for
court. Professionals who go to court on their days off may also choose to
wear a suit instead of their uniform because they are going to court in their
personal vehicles. Many prosecutors suggest that law enforcement
professionals appear in court in civilian clothing rather than in uniform.
Their suggestion is based on the reasoning that jurors tend to associate the
officer in uniform with any traffic citations they might have received. To
some jurors, the uniform and badge may represent an authority that they
resent and could affect the weight given to an officer’s testimony. The new
officer should ask the prosecutor if he or she has a preference as to what the
officer should wear; however, there is nothing improper about an officer
wearing a uniform to testify. An officer should refrain from wearing a
nightstick or baton in the courtroom and should remove a uniform hat or
motorcycle helmet prior to entering the courtroom.

Page 473

ON THE JOB

Many times, the law enforcement professional will not have a pretrial
interview with the prosecutor. This is particularly true of misdemeanor trials
and other minor offenses. The officer should take the initiative to seek out
the prosecuting attorney and try to meet before testifying to discuss the
case. This is especially true when there is some problem the attorney may
not know about.

If one is going to appear in court wearing civilian clothing, both male and
female witnesses should wear conservative business attire. Men should
wear a white or solid-color dress shirt and a modest tie with a matching
jacket. Women should wear a business suit or a conservative blouse and
dress slacks or a skirt. Long hair should be pulled back neatly from the face,
and the witness should avoid any flashy jewelry, such as dangling earrings
or large necklaces. The witness should also avoid looking too casual. Sports
clothing, jeans, shorts, open-collared shirts, and athletic shoes are
inappropriate.

Whether in uniform or civilian clothing, the law enforcement professional

should wear well-shined shoes and clothing that is clean and pressed.
Pockets should not bulge with pencils, notebooks, and other items that may
distract from testimony. A witness is not allowed to refer to personal notes
on the stand unless an attorney approaches with notes from which to read.
Therefore, witnesses should not take notes with them to the witness stand.
If a witness in court appears casual, unkempt, or careless, the jury may
assume the person’s work to be of the same caliber and give little weight to
his or her testimony.
Where to Appear and What to Do
When a witness receives a notice to appear in court, he or she is usually
advised exactly where and when to appear. If the witness is to appear on the
first day of the trial, he or she must go to the designated courtroom and wait
for further instructions. If the trial of the case is continued, the judge will
advise the witnesses that they are excused but are to return on a certain date.
Generally, this is the only notice that witnesses will receive for the new
appearance date. If the prosecuting attorney has told the witness that he or
she does not have to appear until sometime after the trial has started, the
witness should be in court at the appointed time and should notify the
prosecutor of his or her presence. This can be done by advising the
prosecutor when court is not in session or through the bailiff or court clerk
after the court session has commenced.

In most instances, witnesses are excluded from the courtroom during a trial.
This is to prevent one witness from hearing another witness’s testimony and
is known as the rule on witnesses, or the witness sequestration rule. Before
going into the courtroom, the law enforcement professional should
determine whether the witnesses have been excluded in order to comply
with the judge’s exclusion order. If the witnesses have been excluded and
the officer goes into the courtroom and sits down, the officer may be
severely reprimanded by the judge. Worse, the law enforcement
professional’s presence, unless discovered immediately, may be cause for a
mistrial. The officer may be asked to wait in a room with other witnesses, in
an officer’s waiting room, or in the hallway outside the courtroom. It is
important that the witness not discuss the nature of his or her testimony
with other witnesses.

Page 474

FYI

An exception to the rule that sequesters witnesses is that a person whose

presence is shown by a party to be essential to the presentation of its case
may remain in the courtroom. In many instances, a law enforcement
professional in charge of an investigation, especially in a complex case,
may be permitted to stay in the courtroom and even sit at the counsel table
to assist the prosecution. Under those circumstances, if the assisting officer
is also a witness, the fact that the officer was present throughout the
testimony of other witnesses is likely to be noted by opposing counsel. It is
imperative for an officer in this situation to maintain a high degree of
professionalism throughout his or her time in the courtroom.

It is mandatory that the witness be at the required place at the required time.
There is no excuse for being late or missing a court appearance, regardless
of how many continuances have been granted or may be anticipated.
However, if for some reason a witness is going to be late, he or she should
telephone the prosecutor or the court clerk, explain the reason for the delay,
and give an estimated time of arrival. This enables the prosecutor to
rearrange the order of the witnesses, if possible, and allows the judge to
plan the court’s calendar accordingly. A witness’s inability to follow simple
instructions, such as showing up on time or calling when he or she is going
to be late, can only have a negative impact—on the person’s reputation, the
judge’s temperament, and the weight the jury awards to the person’s
testimony.
Conduct Before and During the
Court Session
If the witnesses are not excluded from the courtroom, the law enforcement
professional may gain important insights into how, or how not, to testify
effectively by paying close attention to the trial as it progresses. One should
observe the prosecutor’s direct examination, the demeanor of the judge, and
the defense attorney’s cross-examination. As a spectator, the officer will be
able to judge, along with the jury, which witnesses are most persuasive. The
officer can also choose those qualities he or she wishes to emulate while on
the stand. However, the more likely scenario is that the witnesses will be
excluded from the courtroom, in which case the officer should remain in the
immediate area in order to be ready to testify when needed.

Before court is in session and during recess periods, many people

congregate near the courtroom, waiting for court to convene. Some of these
individuals are prospective jurors, and, inasmuch as jurors frequently
formulate opinions of witnesses before they ever take the witness stand,
prospective witnesses should be discreet and circumspect about their
language, conversation, and conduct even before entering the courtroom.
An officer in uniform should be aware that he or she can be easily identified
as an officer. An ill-advised remark about the case, a political figure, or an
ethnic group or loud or boisterous conduct by an officer may prejudice a
juror, so that anything the officer says on the stand will be disregarded.

ON THE JOB

Usually, the judge excludes the witnesses from the courtroom during the
trial. This ensures that the witnesses will not be influenced by one another’s
testimony. Therefore, it is unlikely that the new law enforcement
professional will get to see any of the trial before testifying for the first
time. It is a good idea to visit a courtroom and watch part of a trial before
appearing as a witness for the first time. Preferably, the visit should be to
the courtroom in which one will appear, but watching any trial in progress
would prove helpful.

Page 475

If witnesses are not excluded from the courtroom, officers should avoid
carrying on conversations or passing notes and papers among themselves
while the trial is in progress. The witness should avoid displaying emotion
in the courtroom. It is only natural for the officer who has investigated the
case thoroughly to be convinced of the defendant’s guilt, but the officer
must not convey that belief to the jury and should assume a completely
neutral position. The officer must not give the impression to the jury of
being prejudiced against the defendant or trying to “railroad” the defendant
into jail. The officer must be careful while the prosecuting or defense
attorneys are speaking to avoid facial expressions that will convey the
officer’s feelings to the jury. Any indication of bias should be avoided, as
some jurors, by their nature, are wary of law enforcement officers. Jurors’
feelings may be aggravated by seemingly insignificant actions, such as the
officer rolling his or her eyes, which only builds an unfavorable impression
and lessens the effect of the officer’s testimony. The officer should at all
times show the greatest dignity, poise, and decorum possible.

Unfortunately, some officers have found that certain actions in which they
have engaged during trial recesses have worked to their disadvantage. The
officer should not engage in conversations with the defense attorney or
defense witnesses during recesses, no matter how innocent or pleasant the
encounter may appear. An officer can always be recalled to the witness
stand to repeat some ill-timed remark made to a defense attorney or a
defense witness during a recess period.

The officer should also avoid contact with the defendant or defense
witnesses, both before and during the trial. Although the officer should
appear impartial during the trial, jurors may not understand a seeming bond
of friendship between an officer and the defendant after they have heard the
officer relate some unflattering facts about the defendant’s conduct. Any
openly hostile remarks to the defendant would also show a lack of
impartiality.
There should also be no communication between an officer and any
member of the jury. This may be difficult if the officer is acquainted with
one of the jurors socially; however, any conversation between an officer
and a jury member is grounds for a mistrial. Remember that a mistrial may
result in the defendant’s going free, as a subsequent prosecution may be
barred by double jeopardy. All of the foregoing suggestions apply equally
to law enforcement personnel called upon to testify in court.

Conferring with the Prosecuting Attorney

Any conference with the prosecuting attorney concerning one’s testimony
should take place prior to the trial date. The prospective witness will have
an opportunity to talk with the prosecutor during pretrial conferences and
before the preliminary hearing. At the trial, the prosecutor must deal with
many witnesses, many of whom have never testified before. Additionally,
the law enforcement professional should bring his or her own copies of
reports so as not to inconvenience the prosecutor by having to borrow the
latter’s reports.

Page 476

Being Called to the Stand

When called as a witness, walk toward the witness stand, which is next to
the judge on the side closest to the jury. Never walk in front of the judge,
between the judge’s bench and the attorneys’ tables. This area is called the
well and is considered off-limits. The well should be entered only upon the
judge’s direction.

Procedures differ among courts as to the exact place where the oath is
administered. In some courts, it is administered to the standing witness
outside the witness box. In other courts, the witness is permitted to enter the
witness box and then is asked to stand to take the oath. Be sure to determine
in advance the position where the oath is given.
After the oath has been given, reply with the words “I do” in a sincere, firm
voice, loud enough for the jury to hear. Once a witness has been given the
oath, it is usually not necessary for it to be given a second time, should the
witness be called back to the stand during the same trial.
On the Witness Stand
Once seated in the witness stand, avoid slouching or slumping in the seat,
chewing gum, or having something else in your mouth while testifying.
Avoid fidgety behavior, such as playing with a pen or pencil, continually
clearing your throat, scratching or rubbing your nose, or pulling your
earlobes. Common sense dictates that you will want to appear as
professional, natural, and personable as possible before the jury. Avoid
robot-like mannerisms that signal to the jury inexperience, discomfort, or
something to hide.

Voice and Grammar

While testifying, speak into the microphone, if there is one, using a normal
conversational tone and level. As the attorneys are asking questions, look at
each questioning attorney but then direct the answer to the jury. This
enables eye contact with the jury, thus giving the jury, not the judge or
attorneys, the facts of the case. Avoiding eye contact with the jury may be
interpreted as an attempt to hide something from the jurors.

Avoid sentence fillers, such as “uh,” “well,” “you know,” or “like,” when
testifying. When used in excess, these words can be annoying to the jury
and can signal uncertainty about an answer, even if that is not the case.
Improper grammar should also be avoided because it can also irritate the
jurors and suggest ignorance, lack of training, or lack of experience in
testifying. Using careless speech, such as the words “have went,” “have
came,” “have took,” “ain’t,” or “irregardless,” can only make an
unfavorable impression on jurors, leading them to believe that you are as
careless with your work as with the words you choose.

FYI

The area in the courtroom in front of the judge’s bench, between the bench
and counsel tables, is known as the well. Traditionally, the area is at least
one sword’s length from the judge’s bench and is off-limits to all persons
appearing in the courtroom. This tradition, which originally offered
protection to the judge, is still customary today. No one should enter the
well without asking the judge for permission to do so. Officers, in
particular, should avoid walking into the well en route to and from the
witness stand.

As a witness, the law enforcement professional must remember that he or

she is speaking “on the record.” In other words, a court reporter is taking
down everything that is spoken in the courtroom. Therefore, the witness
must be sure to speak in a tone and manner that will enable the reporter to
hear the testimony. Moreover, the witness must be sure not to speak at the
same time that anyone else is speaking. Finally, the witness must be sure to
communicate in words, not gestures or hand movements.

Page 477

ON THE JOB

Testifying is very similar to taking the oral interview on the police officer’s
entrance exam. One wants to give the examiners, or jurors, the best possible
impression of oneself and of what one has to say. Sit tall, smile, tell the
truth, remain cool and calm during questioning, and appear relaxed and in
control, even if experiencing stomach cartwheels. Speak in a firm and
confident, but not boisterous, tone of voice and maintain eye contact with
the people in the room.

Profanity and Vulgarity

Law enforcement professionals are in constant contact with the criminal
world, where profanity and vulgarity are part of normal speech. Although
officers may use the same vocabulary as the criminal in daily conversations,
these profane or vulgar terms must be avoided while testifying, unless the
witness is repeating the exact language used in a conversation. When the
witness must quote exact language for the jury to hear, the witness should
tell the jury that he or she is, in fact, quoting exactly the words used. Also, a
word or phrase may not seem to be vulgar to the average juror but may be
viewed as profane by a particular listener. For example, the term “your
mother” is used by some street gangs as the ultimate “four-letter” fighting
word. In this case, the witness will need to explain the profanity of this
phrase to the jurors, so that they can give it the proper evidentiary value.

FYI

The first statement below contains numerous examples of police jargon. It

is followed by a translation of the statement.

I was on my way to 9-11B with 2A21 for a Code 7 when I saw 2L23
pull a T-Stop. 2L23 said he wasn’t Code 4 yet because he thought he
had a hype in a stolen. I assisted in the FST, called an RA, and ran 10-
28 and 10-29s and came up with a hit on both. 2L23 went 10-15 with
one and I was 10-98.

The translation: I was on my way to meet with the officers assigned

the call sign 2A21 for lunch when I saw another officer assigned the
call sign 2L23 conduct a traffic stop. The officer said he was not in
control of the situation yet because he thought he had a person under
the influence of a controlled substance driving what he believed to be a
stolen car. I assisted him in conducting a field sobriety test on the
individual, called for a rescue ambulance, and radioed to the station to
check the suspect’s name through the police database to see if he was
wanted anywhere or had any outstanding warrants. I also ran a
computer check on the vehicle to see if it was stolen. The database
showed that the suspect was wanted or had an outstanding warrant and
that the vehicle was stolen. 2L23 took the suspect into custody for
booking and I cleared the scene.

Jargon
Persons in all walks of life, including law enforcement professionals, use a
form of occupational jargon that, in most instances, is meaningless to those
outside the occupation. Initials, numbers, and code section numbers are
used when speaking of certain violations—such as “51-50,” the California
Health and Welfare Code and Institutions § 5150 for a person who is
mentally unstable. This jargon, as well as the language of criminals that has
been adopted into an officer’s vocabulary, should be avoided or else
thoroughly explained when testifying; otherwise, the jury will lose the
meaning of the officer’s testimony.

For example, officers frequently refer to marijuana as “bud,” an armed

robbery as a “2-11,” and a police helicopter as a “whirly-bird.” In one state,
the vehicle code section making drunken driving a violation was Section
502. Officers referred to this violation as a “five-o-deuce,” and this term
became so much a part of the language of one officer that he used it while
testifying. The defense attorney challenged his remark concerning the
alleged violation. The officer became so confused that he could not recall
the correct code section and ended up looking terribly incompetent. In
short, the law enforcement witness should avoid all jargon that could
ultimately confuse the jury or the witness.

Page 478

References to the Accused

A law enforcement witness will undoubtedly have to refer to the accused,
usually when identifying the defendant and testifying as to his or her
conduct. The witness’s voice should avoid any inflection that shows
prejudice toward the defendant. When identifying the defendant for the first
time, the witness should look to the defense table, where the defendant is
sitting, identify the defendant, and describe what he or she is wearing. The
witness should avoid pointing at the defendant because it is accusatory and
because the court reporter cannot reflect gestures, such as pointing, on the
record. For example, the witness can identify the defendant by saying, “The
person that I arrested that night is in the courtroom today and is the female
wearing a county jail blue jumpsuit at the defense counsel’s table.”

Although the witness may refer to the accused as “the defendant,” some
defense attorneys will object, arguing that the accused should be referred to
by name. If everyone else involved in the trial is referred to by name, it can
be argued that referring to the accused as the defendant is demeaning.
Therefore, the officer may wish to call the defendant by name to avoid any
appearance of intentionally demeaning the accused.

Answering Questions on the Stand

The first few questions asked of the law enforcement witness by the
prosecuting attorney will be background questions, such as occupation,
years on the force, unit of assignment (such as patrol or narcotics), and
specialized training in a certain area, such as drug detection. Although the
witness may find it tedious to recite such basic information or a lengthy
training history, this information is required for the trial record. Equally
important, the jury will be hearing this information for the first time, and it
will be the jury’s first opportunity to view the law enforcement witness. The
jury will use this early portion of the testimony to formulate its opinion
about the officer.

The following example presents a typical background line of questioning of

a law enforcement officer by a prosecutor.

1. Prosecutor: Please state your name and spell it for the record.

2. Officer: My name is Jane Roe. J-a-n-e R-o-e.

3. Prosecutor: Ms. Roe, you are employed by the New York City Police,
aren’t you?

4. Officer: Yes.

5. Prosecutor: Please state your rank and duty assignment on the date of
May 27, 2018.

6. Officer: I was, and am, a lieutenant assigned to the homicide division

of the 24th precinct; actually, I am supervisor of the homicide division.

7. Prosecutor: Lieutenant Roe, how long have you been a police officer?

Page 479
 8. Officer: Nineteen years.

9. Prosecutor: What training and experience have you had in

determining the trajectory path of a bullet?

10. Officer: I have a bachelor’s degree from SUNY Buffalo in criminal

justice and a master’s degree in forensic science. I attended a one-week
training course in 2010 on weapons and their firing patterns and an
eight-hour class on determining the origin of a fired bullet, and I have
been a member of numerous forensics societies for approximately
fifteen years. For the past five years, I have taught new detectives how
to determine the trajectory, the angle, and the origin of a bullet and
have taught new police cadets the basic bullet trajectory science, so
that they can begin investigations before the detectives arrive. I have
investigated the trajectory of a bullet in approximately 300 to 400
cases.

11. Prosecutor: Have you ever testified as an expert in determining the

trajectory of a bullet?

12. Officer: Yes, I have testified as an expert approximately 40 to 50 times

in the Supreme Court.

As the prosecuting attorney begins the interrogation of the officer

concerning the facts of the case, the defense attorney will undoubtedly
make objections to some of the questions asked. When an objection is
made, the judge may sustain the objection, which means that the question
may not be answered, or overrule the objection, which authorizes the
witness to answer the question. Before answering any questions, whether it
is during direct examination or cross-examination, the witness should allow
sufficient time for an objection to be made. It is actually to the advantage of
the witness to wait a second or two before replying, taking an opportunity
to think about the question and to form an intelligent answer. However, it is
not necessary for the officer to look at the defense attorney after each
question is asked by the prosecution to see whether an objection is
forthcoming. If an objection is made to a question asked, the witness must
wait for the judge to rule upon the objection. Judges find it highly irritating
to have to strike, or eliminate from the record, the witness’s testimony
continually because he or she did not wait for the judge to make a ruling on
the objection. If the objection is overruled and the witness does not recall
the question or does not understand the question, the witness should ask to
have the question repeated. The witness should never guess what was
asked.

As the direct examination progresses, frequently the witness tends to relax

and settle down because the prosecutor is an ally and the questioning is
going well. Once cross-examination begins, however, the witness frequently
sits erect and pushes forward to the edge of the chair, as if to meet the
enemy. To avoid such a sudden change of demeanor, the witness should not
look too relaxed during direct examination and should avoid changing his
or her expression and body language once cross-examination begins. The
witness should maintain the same conversational tone during cross-
examination, avoid becoming emotional or sarcastic, and not make
wisecracks or argue with the defense attorney.

ON THE JOB

As often as possible, a police officer on the witness stand should limit his or
her responses to “yes,” “no,” and “I don’t know,” especially on cross-
examination. The officer should never volunteer information not required to
answer the questions truthfully.

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Some defense attorneys are overzealous in their effort to represent the

defendant and become very aggressive and antagonistic during the cross-
examination. Although it may be difficult for the officer to maintain his or
her composure, the defense attorney usually acts this way for one reason—
to get the witness to lose his or her temper. The defense attorney may take
advantage of the witness losing his or her temper on the stand by alleging
that the witness also lost his or her temper with the defendant and that the
confession or consent to search was obtained because the defendant was
fearful. The jury is more likely to believe the defense’s allegations if they
have witnessed an angry outburst on the stand. Conversely, if the witness
can remain calm during an aggressive personal attack by the defense
attorney, the jury will undoubtedly respect and believe the witness, and the
defense attorney’s tactics will actually work to the advantage of the law
enforcement officer.

When asked a question, whether on direct or cross-examination, the witness

should answer the question as concisely, accurately, and clearly as possible
and should not volunteer information. By volunteering information, the
witness may unnecessarily open up an area for cross-examination, or he or
she may bring out matters that the prosecutor planned to emphasize at a
later point in the trial with a different witness. Frequently during cross-
examination, the defense attorney will continue to look at the officer after
the officer has completed the answer. Officers sometimes think that the
attorney is waiting for more information and will add to their testimony,
usually with information that is outside the scope of the defense attorney’s
question and could lead to additional cross-examination. Although all
questions should be answered as completely as possible, the witness should
stop when this is done and wait for the next question, ignoring any pause by
the defense attorney.

During the direct examination, the witness who may know or think that the
prosecutor has overlooked an important fact may mention it to the
prosecutor at the first opportunity. It may be necessary to wait until a recess,
but the witness should not volunteer it on the stand, as the prosecutor may
have intentionally excluded that testimony. After completing testimony, if
the officer sincerely believes that there was a very important point
overlooked, he or she may quietly mention it to the prosecutor after leaving
the stand. If the prosecutor thinks that the omitted testimony is important
enough, he or she may recall the witness to the stand. However, if the
prosecutor chooses to disregard the point, the officer should not argue. It is
the prosecuting attorney’s, not the officer’s, responsibility to guide the
prosecution of the defendant.

FYI

The general structure of cross-examination allows the defense attorney to

question the witness only on subject areas that were raised or suggested
during direct examination. This limitation is based on the rule that cross-
examination is limited to the scope of the subject matter of direct
examination. This rule prevents “fishing expeditions” by the defense and
allows for cross-examination only on issues that the prosecution chooses to
present against the defendant. By volunteering information, the witness can
open up areas not intended by the prosecution and for which the
prosecution is not prepared.

Officers should not mention the criminal record or prior conviction of a

defendant unless specifically asked. The defendant’s other acts of
misconduct, crimes, and criminal record may be revealed only under very
limited circumstances, and referring to such matters during the officer’s
testimony may result in a mistrial.

Page 481

When the Witness Forgets Testimony

Although the law enforcement professional should become as familiar as
possible with the facts of the case, he or she is not expected to be able to
recall certain minute details, such as serial numbers, measurements, and
license numbers. Even major facts may slip from the mind of any witness.
The witness should not feel embarrassed if he or she cannot recall every
detail of the case, as the investigation may have taken place several years
earlier and the witness will have worked on a number of other cases since
then. If unable to remember, the witness should simply state, “I do not
recall at this time, but I did write that information in my report. If I am able
to review my report, which I made when the facts were still fresh in my
memory, I’m sure it will refresh my memory.” Once the witness has
reviewed the report, he or she must be able to say truthfully that his or her
memory is refreshed. Then, when the witness answers the question, his or
her testimony is completely truthful.

Any document that a witness uses to refresh his or her memory while on the
stand may be examined by the defense attorney. If the witness uses a pocket
notebook for this purpose, the defense attorney may peruse the entire
notebook. For this reason, the officer should put all information that he or
she believes will be needed for trial in the report or utilize a loose-leaf
notebook, so that the pages pertaining to the case at hand may be removed
and taken to the stand. In jurisdictions where the defense is permitted to
examine anything the officer uses before trial to refresh his or her memory
about the facts of the case, the defense may also examine the entire
notebook unless those pages pertaining to the case can be removed and
furnished to the defense.

Cross-Examination
Defense attorneys differ in their approach to witnesses upon cross-
examination. Some attorneys assume a friendly attitude toward the witness.
The defense attorney may be very complimentary to an officer. Each
question may be posed in a manner that gives the impression that it is a
privilege to be permitted to make such an inquiry of the witness. Such an
approach may lull the witness into a state of false security, causing the
officer to become overconfident and, as a result, possibly make careless
remarks when answering the questions on cross-examination.

Other attorneys endeavor to browbeat witnesses or assume an extremely

adversarial attitude toward them, particularly when the witnesses being
cross-examined are police officers. The defense attorney may make
insinuating remarks in an effort to devalue the witness’s testimony, and the
witness may be taxed to the extreme to maintain composure. A witness who
cannot remain composed may react emotionally and do or say things that
are detrimental to the prosecution of the case. This is usually what the
defense attorney is hoping for. A law enforcement witness should never
become engaged in a verbal altercation with a defense attorney.

Various kinds of questions are asked of a law enforcement witness by the

defense attorney. Frequently, questions are asked that demand a yes or no
answer. Some questions cannot be answered intelligently with a simple yes
or no, for example, “Have you stopped beating suspects in handcuffs?”
Such a question implies that the witness has beaten suspects in custody in
the past and that the only fact now involved is whether he or she continues
to do so or has stopped. If the officer has never beaten a suspect in custody,
either a yes or a no would be incorrect and not a truthful statement. This is
an excellent example of an argumentative question that is objectionable.
However, if the prosecutor fails to object to such a question or to some
other that the witness cannot answer intelligently with a yes or no, the
witness should inform the judge, “This question cannot be answered by a
yes or no response.” If the judge insists on an answer, there is no choice but
to answer with a yes or no, depending upon which is the most correct. The
witness will have the opportunity to explain the answer fully during re-
direct examination.

Page 482

A question from the defense attorney that may confuse a new officer is
“Have you discussed this case with anyone?” Many people think that it is
improper to discuss the facts of a case with anyone else. Any witness, law
enforcement professional or not, who has not discussed the case with the
prosecutor is not properly prepared to testify intelligently. The facts should
also be discussed by all of the officers who were involved in the case to
make sure each knows what to testify about and what real evidence to
present. The fact that the case has been discussed with others before the
trial does not mean that a story has been fabricated or that the testimony is
going to be falsely related. The witness should readily admit discussing the
case with superiors and the prosecutor but should explain that he or she was
not told what to say, except to relate the facts truthfully and accurately.

Many times, a defense attorney will ask an obviously absurd question, for
example, “You didn’t see the shooting, did you?” Such a question may be
designed to elicit an equally absurd or curt response. Such questions should
be answered with the same courtesy and seriousness as all others. A
question may be asked in an ambiguous or misleading manner, such as “Do
you want the jury to believe … ” or “Is it your testimony that. …” If a
question is asked in a misleading or ambiguous way, the witness should ask
that the question be clarified. Sometimes questions are asked in rapid
sequence, with the hope that the officer will reply equally rapidly, possibly
resulting in inaccuracies. The witness should not yield to the pressure of
giving a quick answer. If the witness needs time to regain composure, did
not hear the question, or did not understand the question, he or she may
request that the question be repeated. If the witness does not know the
answer to a question, he or she should have no hesitancy in stating, “I do
not know.” Neither should the witness be reluctant about answering a
question that may seem favorable to the defendant. The witness will gain
more respect and favor with the jury by telling his or her entire story in an
impartial and impersonal manner than if the witness appears biased against
the defendant.

One mistake often made during cross-examination is to try to determine the

motive behind a question asked by the defense attorney. In doing so, the
witness may gear the answer to what he or she believes is the motive and
thus fail to give a direct and concise answer to the question. The witness
may even include material that is not pertinent or give an entirely irrelevant
answer as a result of thinking about an alleged motive rather than the
question asked. Anytime a witness tries to outthink the attorney instead of
adhering to the truth with short, concise answers, the witness can end up in
serious trouble and cause difficult problems for the prosecution.

ON THE JOB

Occasionally, the law enforcement professional may find that his or her
service record will become the subject of cross-examination. It is a good
idea to keep track of the number and types of cases in which you have been
involved, as well as the number of cases in which you have testified. Also,
you should be ready to identify training classes and college courses you
have taken and any awards you have received. Having this information
ready can only help you on the stand.
Page 483

After Testifying
After completing both direct and cross-examination testimony, the law
enforcement professional appearing as a witness should make certain that
he or she is permanently excused before exiting the courthouse. Many
times, the prosecutor or defense attorney recalls witnesses for further
testimony, so the witness will need to ascertain whether he or she will be
called again to testify before leaving.
Review Case After Verdict
Having testified in the best manner possible, a law enforcement
professional should not take an acquittal personally. A professional who
failed to testify properly should endeavor to determine his or her mistakes,
correct them, and assist others in not making the same mistakes. Whether
an acquittal is granted or a conviction obtained, the professional should
review the case to determine mistakes made in the testimony, the collection
and preservation of the evidence, and the interviews with witnesses. The
professional should examine all facets of the case in an effort to improve
investigation and courtroom techniques continually. This will enable the
person to grow as a witness, as an investigator, and as a professional officer.
Review and Application
Summary
1. The law enforcement professional may receive a subpoena, much like
any other witness. He or she may be served directly with the subpoena
or, if the department is large enough, through a subpoena control
department. He or she may not receive a subpoena at all but may
merely receive a call from the prosecutor, advising that he or she is
needed as a witness in a particular case.

2. The general rule for a law enforcement professional is to wear to court

what he or she wears to work. If the officer wears a uniform to work,
then that is what he or she should wear to court. A professional who
does not wear a uniform should wear business attire to court. Those
who go to court on their days off may also choose to wear a suit
instead of their uniform, as they are going to court in their personal
vehicles.

Page 484

3. A witness should not speak to jurors, defense counsel, defense

witnesses, and the defendant during court recess.

4. After each question posed on direct and cross-examination, the witness

should pause for a second to see if there are any objections. If there is
an objection, the witness should not answer the question until the
judge has ruled. If the judge sustains the objection, the witness may
not answer the question. If the judge overrules the objection, the
witness may then answer the question.

5. A law enforcement professional who cannot remember the answer to a

question asked should state that he or she does not remember. If there
is anything that the witness believes will refresh his or her recollection,
such as a written report, he or she should so state. If, and only if, the
 witness’s memory is refreshed, he or she may truthfully respond to the
question.

6. When asked an argumentative question on cross-examination to which

the defense attorney insists upon a yes or no answer, the witness
should wait for the prosecutor to object. If there is no objection, the
witness should inform the judge that he or she cannot answer the
question intelligently with a yes or a no. If the judge insists that the
witness answer the question, he or she should answer as best he or she
can and try to explain fully on re-direct examination.

Key Terms
subpoena 471

on-call 471

rule on witnesses 473

the well 476

sustain the objection 479

overrule the objection 479

Questions for Review

1. What are the methods used to notify a witness to appear in court?

2. What is appropriate clothing for law enforcement professionals to wear

to court?

3. Identify the persons that the law enforcement witness should not speak
to during recesses.

4. Explain what a law enforcement witness should do while testifying

with respect to objections.
 5. State what a law enforcement witness should do when he or she does
not remember the answer to a question asked.

6. Explain what a law enforcement witness should do when asked an

argumentative question on cross-examination that the defense attorney
insists should be answered yes or no.

Design Element: ©Ingram Publishing

Page 485

Glossary
accident investigator The person who investigates the causes and
results of vehicle accidents.

acoustical spectrography The branch of science that consists of

composing the voice or sound into harmonic components and
obtaining a visual pattern of the sound—a spectrogram.

admission Any statement, verbal or otherwise, made by a party that

can be used in evidence against him or her.

adoptive opposing party’s statement (admission) A “statement” that

occurs when a party, though not making the statement himself or
herself, adopts a statement made by another, usually by silence in the
face of an accusation.

adverse witness A witness aligned with the opposing side.

affidavit A written statement, sworn under oath, in which the officer

states the facts within his or her personal knowledge that support the
criminal complaint.

affirmative defense A reason under the law that allows a defendant to

claim to be exonerated, one that the defendant must affirmatively
claim and prove.

anticipatory warrant A warrant issued with a provision that it be

executed upon the occurrence of a triggering condition.

apparent authority doctrine The principle by which a third-party

consent search will be deemed reasonable if the facts available to the
officer at the moment of entry would cause a reasonable person to
believe that the consenting party had common authority for most
purposes over the premises or property.

arraignment and plea The defendant’s appearance in court after the

filing of a formal charge, at which the defendant enters a formal plea to
the charges, and at which issues about right to counsel and bail are
decided by the judge.

attenuation doctrine The exception to the fruit of the poisonous tree

doctrine in which the connection between the unlawful conduct of the
police and the discovery of the challenged evidence is so unrelated as
to dissipate the taint.

attesting witness A person who can authenticate or verify the

accuracy of the evidence.

attorney One who is authorized to practice law in a given state or

nation.

authentication The presentation of proof to show that an object is

what its proponent claims it to be.

bail A deposit of cash, other property, or a bond guaranteeing that the

accused will appear in court.

balancing test, or legal relevancy The requirement that relevant

evidence not be admitted if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury.

best evidence rule The rule that requires that, in proving the terms of
a document, the original writing must be produced, unless the
document is shown to be unavailable for some reason other than the
bad faith act of the party seeking to introduce the document.

bias A witness’s interest in the case or its outcome.

bond A written promise to pay the bail sum, posted by a financially
responsible person, usually a professional bondsman.

booking A formal processing of the arrested person by the police that

involves recording the arrest, fingerprinting, photographing, and
inventorying all the personal items taken from the suspect.

Brady material Information favorable to the defense, in the possession

of the prosecution, material to the defendant’s case that must be
disclosed to the defense.

burden of proof The law’s requirement that a particular party

introduce evidence in a lawsuit and persuade the fact-finder that the
evidence is believable.

business or public records The hearsay exceptions that permit certain

written reports or records that record acts, events, conditions, opinions,
or diagnoses to be admitted into evidence without requiring the person
with knowledge of the facts contained in the records to be called as a
witness.

case-in-chief That portion of the trial that comprises the main

evidence, for either the prosecution or the defense.

certified copy A copy of a document to which is attached a statement

by the person, official, or clerk having custody of the record certifying
that the document is a true copy of the original.

chain of custody A method of authentication in which evidence is

presented showing that the photograph or recording has been in the
constant possession of one or more persons and that the evidence is in
the same condition as it was originally.

challenges for cause The motion that a prospective juror should be

excluded because he or she is incapable of being impartial.

character evidence rule The rule that states evidence of a trait of

character to prove a person’s conduct in conformity with that trait is
inadmissible, with a few exceptions.

Page 486

character witness A person who has sufficient personal knowledge of

another individual to be in a position to render an opinion or testify to
the reputation of the character of the person in question.

circumstantial evidence Evidence that tends to establish the facts in

dispute by proving the existence of another set of facts from which an
inference or a presumption can be drawn.

clergy Priests, ministers, religious practitioners, or similar

functionaries who have been ordained by a religious denomination or
organization.

client One who goes to an attorney seeking professional services or

advice.

collateral matter A matter only incidentally related to the issues at

trial. When the contents of a document relate to such a matter, the
original document need not be produced in court.

common authority Mutual use of the property searched by persons

generally having joint access to or control over the property for most
purposes.

communicant One who seeks out the clergy in a religious capacity for
the purpose of securing spiritual advice.

conclusion The ultimate inference drawn from a fact observed; a

synonym for “opinion.”

conclusive presumption A presumption that the law demands or

directs be made from a set of facts and that cannot be refuted by
evidence.

confession A conscious acknowledgment of guilt by an accused.

Confrontation Clause The provision of the Sixth Amendment to the
Constitution of the United States that guarantees the defendant in a
criminal case the right “to be confronted with the witnesses against
him.”

consciousness of guilt Evidence of an accused’s uncustomary acts,

statements, or appearance from which guilt may be inferred.

consent A voluntary agreement by a citizen to an officer, allowing the

officer to search the citizen’s property, given without coercion and
with authority over the place or thing to be searched.

consent search Another of the well-delineated exceptions to the

warrant requirement, as well as an exception to the probable cause
requirement.

contempt The power of a court to punish persons for failure to obey

court orders or coerce them into obeying court orders.

contraband An object or material that is illegal for anyone to possess.

contradiction by cross-examination Impeachment by asking the

witness about facts that are directly in opposition to those testified to
by the witness on direct examination.

contradiction generally The form of impeachment that asserts the

opposite of a statement or specifically denies a statement.

contradictory evidence Evidence used to prove a fact contrary to

what has been asserted by a party or witness.

corpus delicti Required proof, other than a confession, that a crime has
been committed.

corroborative evidence Evidence that is supportive of other evidence

already given, tending to strengthen or confirm the prior evidence
introduced.
credibility The quality in a witness that renders the witness’s evidence
worthy of belief.

crimes experts Persons, often law enforcement officers, who are

experts in the methodology and paraphernalia involved in committing
specific crimes.

criminal complaint A document that charges the defendant with a

specific crime, usually signed by a law enforcement officer or
prosecutor.

criminalist A specialist in the application of science to crime and the

law.

critical stage The initiation of an adversarial judicial proceeding,

whether by way of formal charge, preliminary hearing, indictment,
information, or arraignment.

cross-examination The rigorous examination of a witness by opposing

counsel in which the questioner seeks to detract from the witness’s
credibility, often by using leading questions.

cumulative evidence Evidence that repeats earlier testimonial or

tangible evidence.

curtilage The land immediately surrounding a home and associated

with it, where one has a reasonable expectation of privacy.

custodial interrogations Interrogations conducted with the suspect in

custody. Such interrogations can occur only after the suspect has been
read, and waived, his or her Miranda rights.

custody Custody results when a police officer restrains a person in a

manner consistent with a formal arrest, regardless of the situation or
intent of the officer.

dangerous patient exception An exception to psychotherapist-patient

privilege, existing in most states, which provides that, if the
psychotherapist has reasonable cause to believe that the patient is in
such mental or emotional condition as to be dangerous to himself or
herself, or to another person or another’s property, the disclosure of the
communications is necessary to prevent the threatened danger.

Daubert-Kumho test The new test for admissibility of expert

testimony, requiring the trial judge to determine that the subject of an
expert’s testimony has achieved the stature of “scientific knowledge”
based on five factors: (1) testing of the theory or technique; (2) peer
review and publication of the theory or technique; (3) the particular
scientific technique’s known or potential rate of error; (4) the existence
and maintenance of standards controlling the technique’s operation;
and (5) the theory or technique’s “general acceptance.”

declarant A person who makes a statement.

Page 487

declaration against interest An exception to the hearsay rule for a

statement made by a person who is not a party to the case and who is
unavailable as a witness. To qualify as a declaration against interest,
the person’s statement must have been contrary to the person’s
interests at the time it was made.

defendant’s good character rule The rule of evidence that permits an

accused to introduce evidence of good character in an attempt to prove
his or her innocence.

deliberate elicitation When the law enforcement officer acts with the
purpose of eliciting an incriminating response from a suspect after
counsel has been obtained or the adversarial proceeding has begun.

demonstrative evidence Evidence used solely to illustrate a witness’s

testimony. A representation of the object to be entered into evidence: a
copy, an imitation, a model, or a reproduction.

deposition A written declaration, under oath, made upon notice to the

adverse party, during which the adversary is present and cross-
examines.

deterrence rationale The rationale for the exclusionary rule that rests
upon the view that, to deter police officers from disregarding the
Constitution, it is necessary to exclude from evidence at trial the
evidentiary fruits of illegal police conduct.

direct evidence Testimony of a person who asserts or claims to have

actual knowledge of a fact, such as an eyewitness.

direct examination The questioning of a witness by the side who calls

that witness.

discovery The right afforded to the adversary in a trial to examine,

inspect, and copy the evidence in the hands of the other side.

distinctive characteristic A method of authentication whereby a

unique object is placed in the scene of a photograph or recording for
purposes of identification.

DNA experts Persons educated in genetics, biology, chemistry, or

other sciences who work with and present DNA evidence.

doctrine of chances The use of evidence of other, similar occurrences

to show that the charged crime is not an isolated event due to chance.

doctrine of completeness The rule that provides that if a party seeks

to admit part of a document, the opposing party may “require the
introduction at that time of any other part or any other writing or
recorded statement which ought in fairness to be considered
contemporaneously with it.”

document examiner An expert in the analysis of documents who

identifies documents, paper, handwriting, and the like.

duplicate A copy produced by methods possessing an accuracy that

virtually eliminates the possibility of error.
dying declaration An exception to the hearsay rule that provides that
a statement made by an unavailable declarant may be admitted into
evidence in a prosecution for a homicide or, in a civil case, a statement
that the declarant, while believing the declarant’s death to be
imminent, made about its cause or circumstance.

ELMO A computer-controlled projection system, including a visual

presenter, for use in the courtroom. ELMO is actually the name of the
company that created the system; the acronym stands for Electronic
Light Magnetic Optical.

emergency or exigent circumstances Those circumstances that will

justify a suggestive presentation of a suspect to a witness, such as
when the witness is in danger of dying.

evidence Information that people base decisions on. In a legal sense,

evidence is the information presented in court during a trial that
enables the judge and jury to decide a particular case.

evidence locker A place, usually in a police station, where evidence

gathered by law enforcement officers is deposited and kept safe from
tampering pending its use in court.

evidence of a crime Any object that demonstrates that a crime has

been committed.

evidence of other crimes, acts, or wrongs Evidence of bad acts used

not to prove a trait of character but to prove something else, such as
motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.

evidentiary objections Legal arguments raised by opposing counsel

during trial to prevent a witness from testifying or other evidence from
being admitted.

excited utterance A statement relating to a startling event or

condition, made while the declarant was under the stress of excitement
that it caused.
exclusionary rule The rule that provides that illegally obtained
evidence will be excluded from use in a criminal trial.

exclusive control Personal possession of an object of evidence from

the time the officer picks it up at the crime scene until it is produced in
court.

exculpatory evidence Any evidence that tends to prove the innocence

of an accused.

exemplified copy A copy of a record of conviction that has been

certified by the clerk of the court, as well as by the presiding judge of
the particular jurisdiction, stating that the clerk correctly certified the
form.

exigent circumstances search and seizure Another of the well-

delineated exceptions to the warrant requirement permitting a police
officer to enter premises in a situation requiring immediate action. The
Supreme Court has recognized four such circumstances: (1) hot pursuit
of a fleeing felon; (2) imminent destruction of evidence; (3) need to
prevent a suspect’s escape; and (4) risk of harm to the police or to
others.

Page 488

expert on mental illness An expert on the mental condition of

persons, usually a psychologist or psychiatrist.

expert witness A person skilled in some art, trade, science, or

profession. An expert must have knowledge, skill, experience, training,
or education that is beyond that of the average person.

fair probability The test for the amount of belief of suspicion required
for a determination of probable cause.

false friend doctrine The doctrine, in defining one’s reasonable

expectation of privacy, that what a person willingly reveals to another,
on the assumption that the other is a friend, is thereby revealed to the
world if the so-called friend turns out to be no friend at all.

Federal Rules of Evidence (FRE) The most common codification of

evidence law—the rules that apply in all federal courts throughout the
United States and in the 43 states that have relied upon them as a
model in adopting their own evidence codes.

fingerprint expert An expert in the identification of fingerprints by

comparing unknown and known samples of fingerprints.

footprint expert An expert in the identification of unknown footprints

and walking patterns.

former testimony The exception to the hearsay rule that allows into
evidence testimony given by a now unavailable witness at a prior
proceeding.

foundation The requirements of relevance and authentication, which

must be met for admission of an item of evidence.

frisk A limited patdown search of the outer garments of a person to

determine whether he or she possesses a weapon with which to cause
injury to an officer or others.

fruit of a crime Property that is seizable by a police officer, such as

stolen or embezzled property.

fruit of the poisonous tree doctrine The principle that any evidence
derived from a violation of a defendant’s constitutional rights is
inadmissible.

Frye test The former test for admissibility of expert testimony.

Required that the testimony be based on scientific methodology
“generally accepted as reliable in the relevant scientific community.”

good faith exception This exception to the exclusionary rule allows

the admission of evidence even if there is some technical defect in the
warrant, as long as the executing officer has an objectively reasonable
belief that the warrant is valid.

grand jury A panel of persons chosen through strict court procedures

to review criminal investigations and, in some instances, to conduct
criminal investigations. Grand juries decide whether to charge crimes,
in the form of an indictment, in the cases presented to them or
investigated by them.

habeas corpus A form of legal action that seeks to free a prisoner from
unlawful confinement.

hearing in camera A judge’s consideration, privately, in chambers, of

the validity of a claim; here, specifically, a claim that a privilege does
or does not exist.

hearsay A statement that the declarant does not make while testifying
at the current trial or hearing and a party offers in evidence to prove
the truth of the matter asserted in the statement.

holder of a privilege That person who benefits from the privilege and
who has the power to waive it.

hung jury A jury that cannot reach a verdict.

hypothetical questions Questions based on facts, data, or opinions

that have some relation to the matter at issue and upon which the
expert witness is asked to render an opinion.

identification card A card or paper containing identification data

placed at a crime scene before photographing or recording for
purposes of enabling easy authentication.

impeachment A process or a result that diminishes or destroys the

believability of a witness’s testimony.

impeachment exception An exception to the exclusionary rule that

applies to Miranda or the Fourth Amendment, which allows
statements taken in violation of Miranda or the Fourth Amendment to
be used at trial to impeach the testimony of the accused.

implied, or adoptive, opposing party’s admission Silence in the face

of an accusation when a reasonable person would respond.

incompetency The inability to act as a witness. Today, there are few

grounds for incompetency, and in federal courts and all states except
Arkansas (where atheists are not competent), all persons are competent
to be a witness.

inconsistent statements Statements inconsistent with the present

testimony. Such statements are logically relevant to impeach a witness
because one who speaks inconsistently is less likely to be accurate or
truthful.

independent source doctrine One of three exceptions to the fruit of

the poisonous tree doctrine. This exception holds that, if the same
information or knowledge is also gained through a source independent
of the illegality and this fact can be shown by the prosecution, the
information can be admissible through this source but not through the
illegal search.

indicia of reliability Those facts indicating an identification is reliable

—particularly, the five factors of the Biggers case.

indictment A formal written accusation by a grand jury charging a

specified person with the commission of a specified crime, usually a
felony.

inevitable discovery doctrine An exception to the fruit of the

poisonous tree doctrine that states that the challenged evidence is
admissible if the prosecution can show that the evidence would have
been inevitably discovered, even in the absence of the police illegality.

Page 489
inference A conclusion drawn from an observation or a series of
observations.

information A formal written accusation submitted to the court by the

prosecutor, alleging that a specified person has committed a specified
crime.

inscribed chattel An object with words and/or images written,

painted, or engraved on it.

instrumentality of a crime Property that is seizable by a police officer

that was used as the means of committing a crime, such as a gun.

intent A state of mind; it expresses mental action that is usually

coupled with an outward physical act to cause a particular result.

interrogation Express questioning or its functional equivalent, that is,

any words or actions on the part of the police (other than those
normally attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from the
suspect.

inventory search Another of the well-delineated exceptions to the

warrant requirement that permits a police officer to inventory the
property of a vehicle or person for the protection of the property and
the police.

jails The facilities used to maintain custody of persons arrested

pending prosecution and to maintain custody of those sentenced to
short periods of confinement, usually less than one year.

Jencks Act A federal statute that deals only with the right of the
defendant to discover statements made by a government witness. The
statute is named after the case of Jencks v. United States.

judgment of acquittal A judicial decision on whether the prosecution

has satisfied its burden during the presentation of its case-in-chief.
judicial notice The acceptance of a fact by a judge without formal
proof, in the form of testimony or tangible evidence, being presented.
A substitute for evidence.

jurisdiction The power or authority of the court to act with respect to

any case before it.

jury deliberation The review of evidence by the jury in an attempt to

reach a verdict.

jury nullification The power of a jury in a criminal case to acquit a

defendant for any reason or no reason at all.

knock and announce, or knock and notice The constitutional

requirement that, before an officer may execute a search warrant by
forcibly entering the premises, the officer must knock and announce
his or her presence and purpose for entering.

law of evidence The rules that govern what a jury can hear and see
during the trial of a case.

lay opinion testimony In an American courtroom, testimony by

nonexpert witnesses in the form of opinion; must be based on rational
inference from the facts observed and necessary for a clear
understanding of the witnesses’ testimony.

lay witness A person who has some personal knowledge about the
facts of the case and who has been called upon to relate this
information in court.

laying the foundation The identification process to show that an

object is authentic.

leading question A question that suggests to the witness the answer

sought by the questioner.

lineup The presentation to a victim or witness of a line of persons who

all look similar to see if one can be identified as the perpetrator of the
crime.

mandatory presumption The form of presumption that requires the

jury to find the presumed fact from the existence of the basic fact.

marital communications privilege The rule that any communication

between spouses during the marriage is privileged.

Massachusetts procedure An alternative procedure by which a court

decides whether a confession is voluntary. If the judge decides that the
confession is voluntary, the judge instructs the jury as to the definition
of voluntariness and tells the jury to consider the confession as
evidence only if it finds that the confession was voluntary.

material evidence Evidence that pertains to a fact of consequence to

the case on trial.

medical examiner or coroner The government medical expert called

to give opinion testimony as to the cause of death in a homicide.

Miranda warnings The warnings required by the case of Miranda v.

Arizona to be given to a suspect in custody before interrogation by a
police officer can be valid.

modus operandi A distinctive pattern of committing crimes.

motion in limine A motion to exclude or admit evidence, often made

before trial and usually heard out of the presence of the jury.

motion to suppress The written request to a court made by a

defendant in a criminal case objecting to illegally obtained evidence.

motive That which moves a person to act or explains the reason a

person acted.

narrative The form of interrogation in which the witness relates what

happened in his or her own words, without interruption.
neutral magistrate A person who acts as magistrate (or judge) who
can issue a warrant upon application of a law enforcement officer.
Such person cannot be associated with law enforcement or the
prosecution.

news reporter A publisher, an editor, a reporter, or other person

connected with or employed by a newspaper, magazine, or other
periodical publication or by a radio or television station.

notice to produce A formal, written notice issued by one party to

another requiring the production of a document.

Page 490

on-call A direction in a subpoena that states that the officer is not

needed to appear personally in court unless called by the prosecutor. It
requires that the officer be readily available.

open fields doctrine The doctrine, in determining one’s reasonable

expectation of privacy, which states that people do not have a
legitimate expectation of privacy in open fields, even if law
enforcement officers trespass upon private property in order to observe
the open fields.

opening statement A summary of how the prosecution expects its

evidence to show the defendant guilty beyond a reasonable doubt or
how the defense attorney expects to raise a reasonable doubt.

operative legal fact A statement that creates or destroys a legal

relationship, right, power, or duty.

opposing party’s statement (admission) Any statement, verbal or

otherwise, made by a party that can be used in evidence against him or
her.

original document The document itself, “or any counterpart intended

to have the same effect by the person who executed or issued it.”
Additionally, “[f]or electronically stored information, ‘original’ means
any printout—or other output readable by sight—if it accurately
reflects the information.” With respect to photographs, the original is
the negative or any print made from the negative.

orthodox procedure The prevalent procedure by which a court

decides whether a confession is voluntary. In this procedure, the trial
judge decides whether the confession is voluntary, in which case the
confession is introduced into evidence and the judge instructs the jury
to consider the confession along with all the other evidence presented.

overrule the objection A ruling by the judge that permits the witness
to answer the question posed.

parole service An agency of the state correctional system that is

similar to the probation department but supervises those released on
parole from the penitentiary.

paroled When a person who has been convicted of a felony and

sentenced to a term in prison is released under supervision into the
community prior to the expiration of the full sentence.

past recollection recorded A record of a fact, known by a witness at

one time but not presently remembered, that will qualify as evidence.

patient Any person who consults a psychotherapist or physician for

the purpose of the diagnosis or the treatment of a mental or emotional
condition.

peremptory challenge The motion that excludes a prospective juror

from the jury panel without specific reason or justification.

perjury Knowingly making a false statement about a matter material

to a case or swearing or affirming to the truth of a previously made
statement that one knows to be untrue. May be a misdemeanor or
felony.

persuasion burden The element of the burden of proof that requires a

party to persuade the trier of fact on the issue at trial.
photographic array The presentation to a witness of a number of
photographs for the identification of the perpetrator.

photographs Photographic images or their equivalent stored in any

form.

physical evidence Material objects in a criminal trial, for example, a

gun, a knife, bloodstained clothing, a latent fingerprint, or a
photograph.

pictorial testimony Photographic evidence used to illustrate a

witness’s testimony.

plain feel doctrine The principle, extending the plain view doctrine to
the sense of touch, that allows an officer to seize an object during a
lawful patdown search, if the object’s incriminating nature is
immediately apparent, meaning that the officer has probable cause to
believe the object is contraband or fruits, instrumentalities, or evidence
of a crime.

plain view doctrine The last of the well-delineated exceptions to the

warrant requirement providing that an officer may seize an object
without a warrant if (1) the officer observes the object from a lawful
vantage point; (2) the officer has a right of physical access to the
object from the lawful vantage point; and (3) the nature of the object is
immediately apparent as an article subject to seizure.

polygraph experts Persons expert in the workings, use, and results of

tests using polygraphs.

preliminary hearing A court proceeding in which a judge decides

whether there is enough evidence that an accused person committed a
crime to hold that person for trial.

present sense impression A statement describing or explaining an

event or a condition, made while or immediately after the declarant
perceived it.
presumption A substitute for evidence whereby the fact-finder is
allowed to conclude that a certain fact exists because some other fact is
found to exist.

pretrial discovery A reciprocal exchange of information between the

prosecuting and defending attorneys, before trial, either as ordered by
the court in a particular case or required by statute or rule.

prima facie case The amount of proof the prosecution must present in
its case-in-chief—evidence sufficient to establish that a crime was
committed and that the defendant probably did it.

prima facie criminal A case in which the prosecution has established

that a crime has been committed and that the accused probably
committed it.

prima facie criminal evidence A case in which the prosecution has

established that a crime has been committed and that the accused
probably committed it.

prima facie evidence Evidence that, standing alone, unexplained or

uncontradicted, is sufficient to establish a given fact or group of facts
constituting a party’s claim or defense.

Page 491

primary evidence An original document.

prior consistent statement A statement made previously that is

consistent with the present testimony of the witness. It is admissible
only to rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive in so
testifying.

prior inconsistent statement A witness’s previously made statement

that contradicts the witness’s current in-court testimony.
prisons Penal institutions maintained by the state or federal
government consisting of state penitentiaries, reformatories, and
juvenile training facilities.

privilege against self-incrimination The constitutionally based right

that permits a witness to refuse to answer any question if the answer
would tend to show that the witness is guilty of a crime and would
subject the witness to the danger of prosecution and conviction.

privileged communications Exchanges of confidential information

between persons who are in a privileged relationship.

probable cause Although the Fourth Amendment provides that no

warrant shall be issued except upon probable cause, it does not spell
out what probable cause is. The definition of probable cause has been
developed primarily through court decisions and interpretation.

probable cause to arrest When the facts and circumstances within the
officer’s knowledge, and of which he or she has reasonably
trustworthy information, are sufficient to warrant a person of
reasonable caution to believe, by a fair probability, that a particular
individual has committed, or is committing, a particular offense.

probable cause to search When the facts and circumstances within an

officer’s knowledge, and of which he or she has reasonably
trustworthy information, are sufficient in themselves to warrant a
person of reasonable caution in the belief that an item subject to
seizure will be found in the place to be searched.

probation The most frequent sentence imposed on first-time

offenders, whereby the offender is released back into the community
and required to obey the rules and conditions set out in writing by the
probation officer after approval by the judge.

probation department An agency that investigates defendants prior to

sentencing, provides a pre-sentence probation report to the court, and
supervises persons placed on probation after conviction.
production burden The element of the burden of proof that requires a
party to produce evidence at trial on a particular issue.

prompt arraignment rule The rule requiring an arrested person to be

brought before a committing magistrate without unnecessary delay.
Such a delay can cause statements made by the arrested person to be
found inadmissible. Also known as the McNabb-Mallory rule.

proposed privilege rules Those privilege rules drafted but not adopted
as the Federal Rules of Evidence.

protective sweep A quick and limited search of a premises, incident to

an arrest and conducted to protect the safety of police officers or
others. It is narrowly confined to a cursory visual inspection of those
places in which a person might be hiding.

psychotherapist A person who has been authorized to practice

medicine and devotes a substantial portion of his or her time to the
practice of psychiatry or a person who is recognized by the laws of the
particular jurisdiction as a certified psychologist.

public safety exception An exception to the requirement of Miranda

warnings when police officers ask questions reasonably prompted by a
concern for the public safety.

qualifying to be a witness To qualify to be a witness, a person must

possess witness capacity: have personal knowledge of facts relevant to
the case, be able to understand the obligation to tell the truth, and take
the oath or affirm that he or she will testify truthfully.

rape shield laws Laws that prohibit a person accused of a sexual

offense from introducing evidence of the sexual background or
behavior of the victim.

real evidence In terms of physical evidence, the object itself.

reasonable doubt The standard of proof in a criminal case. A doubt

based upon reason: that which would make a reasonable person
hesitate to act in connection with important affairs of life.

reasonable suspicion That level of suspicion, less than probable

cause, which permits an officer to detain a suspect temporarily to make
reasonable inquiry to confirm or dispel the suspicion.

rebuttable presumption A presumption that allows for the opposing

party’s introduction of contradictory evidence to rebut the
presumption’s conclusion.

recognizance A promise to appear in court.

re-cross-examination Further questioning, after redirect examination,

for clarification purposes.

redirect examination Further questioning, after cross-examination,

for the limited purpose of rebutting or clarifying information brought
out during cross-examination.

refreshing recollection The process or fact of reviving a witness’s

memory by a variety of means.

relevance A showing that an item of evidence has any tendency to

make the existence of any fact of consequence more or less probable
than it would be without the evidence.

relevant evidence Evidence that “has any tendency to make a fact

more or less probable than it would be without the evidence; and …
the fact is of consequence in determining the action.”

Page 492

res gestae Literally, “the thing done.” The term is used most
commonly to refer to the spontaneous utterance exceptions to the
hearsay rule but could be meant to encompass any number of other
exceptions. Therefore, it is ambiguous and its use should be avoided.

return of the search warrant A separate document attached to a

warrant, that gives a list of the property seized in connection with the
search and must be returned to the court after the search and seizure
has been completed.

routine booking question exception An exception to the requirement

of Miranda warnings that allows questions to be asked to secure the
biographical data necessary to complete booking or pretrial services.

rule on witnesses The rule, often invoked by a trial judge, that

witnesses be excluded from the courtroom during trial, so that one
witness cannot hear the testimony of another

rulings on objections The judge’s decision on evidentiary objections:

overruled, the witness may testify; sustained, the witness must not
answer the question.

search incident to a lawful arrest (SILA) One of the well-delineated

exceptions to the warrant requirement that permits an officer, without a
warrant and further probable cause, to search the person of and certain
areas around an arrestee incident to a lawful arrest.

search warrant A written order issued upon probable cause by a

neutral and detached magistrate, in the name of the people, to a peace
officer directing the officer to search a particular person or place and to
seize specifically described property and bring it before the magistrate.

secondary evidence Evidence substituted for the original document.

seizure of a person A seizure of the person occurs when, (1) by means

of physical force or show of authority, the person’s freedom of
movement is restrained and only if, and (2) in view of all of the
circumstances surrounding the incident, a reasonable person would not
have believed he or she was free to leave.

seizure of property A seizure that occurs when there is some

meaningful interference with an individual’s possessory interests in
that property.
self-authentication The principle that authenticity of a document may
be determined on its face, without resort to outside evidence.

self-defense The justifiable use of force to protect oneself from a real

or threatened attack. Generally, a person is justified in using a
reasonable amount of force in self-defense if he or she believes that the
danger of bodily harm is imminent and that force is necessary to avoid
this danger.

sequestered jury A jury removed from any outside influence.

show-up The one-on-one presentation of a suspect to a victim or

witness for identification purposes.

silent witness A photograph, film, or video that has been taken by an

automatic camera with no operator present and introduced to document
an event.

silver platter doctrine The doctrine that allowed state officers who
obtained evidence illegally to hand it over to federal officers for
prosecution in federal court.

spousal incapacity privilege The marital privilege that gives a spouse

called to testify against his or her spouse the privilege to refuse to
testify.

staleness doctrine The principle that, once a warrant is issued, it may

not be held indefinitely by the officer before the search is made.

standing The right to contest an illegal search and seizure, or any

claimed constitutional or law violation.

state of mind The exception to the hearsay rule that allows into
evidence a declarant’s assertion of his or her then-existing state of
mind to prove that the person actually had such a state of mind.

state of mind of the declarant A statement offered to show the state

of mind of the person who uttered the statement, not of the person who
heard the statement.

state of mind of the hearer A statement that creates or affects the

state of mind of another who hears the statement.

statements for purposes of medical diagnosis or treatment The

exception to the hearsay rule that allows into evidence statements that
are made for—and are reasonably pertinent to—medical diagnosis or
treatment; and describe medical history; past or present symptoms or
sensations; their inception; or their general cause.

statements of prior identification Statements made out of court

identifying a person made after the declarant has seen that person.

stipulation Facts upon which the trial parties and their attorneys agree
that may be presented during the trial without formal proof being
required.

stop A temporary detention, not amounting to a full-blown arrest,

requiring only reasonable suspicion that a particular individual is about
to commit, is committing, or has committed a crime.

subpoena A court order demanding the presence of the person in court

as a witness.

subpoena duces tecum A subpoena, or order to appear in court,

commanding a person to bring specified documents or objects with
him or her.

substantive evidence Evidence used to decide the existence or

nonexistence of a fact.

sustain the objection A ruling by the judge that prohibits the witness
from answering the question posed.

the well That area in the courtroom, between the judge’s bench and
counsel tables, that is off-limits without the judge’s permission.
totality of the circumstances The test for voluntariness of a
confession.

Page 493

totality of the circumstances (identification) The test for

suggestiveness that, in contrast to the per se rule, takes into account all
surrounding circumstances to determine whether the exclusionary rule
applies.

totality of the circumstances for consent The test for consent that
takes into account all of the circumstances surrounding the giving of
consent to determine whether a person has voluntarily consented.

totality of the circumstances for probable cause The test for

probable cause, which is a fluid concept based on nontechnical,
common-sense considerations.

“traces of the mind” theory The theory that allows into evidence
statements that prove the declarant has knowledge that he or she could
have gained only by actually having perceived some unusual event,
circumstances, or surroundings.

true presumption A presumption that requires that when the jury

finds the basic fact to exist, it must find the presumed fact to exist in
the absence of evidence to the contrary being introduced.

unresponsive answer A witness’s answer that does not address the

subject matter of the question or goes beyond the scope of the question
asked and relates to some other matter.

vehicle exception Another of the well-delineated exceptions to the

warrant requirement by which an officer may search the interior of a
vehicle if he or she has probable cause to believe that it contains
contraband or fruits, instrumentalities, or evidence of a crime.

venire The pool of prospective jurors from which the jury panel is
selected.
venue The neighborhood, place, or county in which an act is declared
to have been done or, in fact, happened, thus defining the particular
county or geographical area in which a court with jurisdiction may
hear and determine a case.

vicarious opposing party’s statement (admission) A statement not

actually made by the party but by an individual acting on behalf of a
party as either a person expressly authorized to speak on behalf of the
party, an employee, or a co-conspirator.

voiceprint expert An expert in voice identification, using the science

of acoustical spectrography.

voir dire The process of questioning a panel of prospective jurors to

select the final panel; roughly it means “to speak the truth.”

voir dire of a proposed expert witness The questioning process by

which an expert witness is qualified.

voluminous records rule An exception to the best evidence rule that

permits a summary, chart, or calculation of voluminous records to be
presented in the place of the records themselves.

witness capacity The elements of witness capacity are the ability to

perceive, remember, and narrate in an understandable manner, as well
as sincerity.

witness immunity Rules allowing witnesses to be spared from

prosecution if the witnesses furnish facts that might otherwise
incriminate themselves.

witness stand The seat taken by a witness to testify at trial.

witness voir dire The process of hearing, usually conducted out of the
presence of the jury, by which a judge decides the qualification of a
witness to testify.
writings and recordings Letters, words, or numbers, or their
equivalent, set down in any form for writings or recorded in any
manner for recordings.
Page 494

Case index
A
Aguilar v. Texas, 291

Alabama v. White, 325

Amazon v. State, 443

Apodaca v. Oregon, 31

Apprendi v. New Jersey, 34

Argersinger v. Hamlin, 264

Arizona v. Evans, 273, 339

Arizona v. Fulminante, 265

Arizona v. Gant, 274, 307, 340

Arizona v. Hicks, 322, 340

Arizona v. Youngblood, 417

Arnold v. S. Carolina, 443

Ashcraft v. Tennessee, 232, 235

Atwater v. City of Lago Vista, 291

B
Bailey v. United States, 327

Baldwin v. New York, 55

Ballew v. Georgia, 30

Banks v. Dretke, 406

Batson v. Kentucky, 33, 55

Beech Aircraft Corp. v. Rainey, 222

Berghuis v. Thompkins, 243

Birchfield v. North Dakota, 308

Blackburn v. Alabama, 264

Blakely v. Washington, 36, 51

Board of Education v. Earls, 331

Bond v. United States, 321

Booth v. State, 203

Brady v. Maryland, 36, 55, 104, 405, 413

Branzburg v. Hayes, 106

Brewer v. Williams, 241

Brinegar v. United States, 340

Brown v. Illinois, 254, 265

Brown v. Mississippi, 234

Bruton v. United States, 265

 Bullcoming v. New Mexico, 216–217, 223

Burch v. Louisiana, 31

C
Cady v. Dombroski, 340

Cage v. Louisiana, 37

California v. Carney, 310

California v. Ciraolo, 282

California v. Green, 55

California v. Greenwood, 284

California v. Hodari D., 285

Camara v. Municipal Court, 341

Cardwell v. Lewis, 340

Carpenter v. United States, 278, 280

Carroll v. United States, 340

Cassamassima v. Florida, 152

Chambers v. Maroney, 340

Chandler v. Miller, 332

Chimel v. California, 303, 340

City of Indianapolis v. Edmond, 332

Collins v. Virginia, 278, 309

 Colorado v. Connelly, 234, 264

Colorado v. Spring, 264

Commonwealth v. Knapp, 395

Coolidge v. New Hampshire, 340, 416

Cooper v. Oklahoma, 72, 77

Couch v. United States, 112

Crawford v. Washington, 183, 200, 223

Culombe v. Connecticut, 264

D
Daubert v. Merrell Dow Pharmaceuticals, Inc., 77, 116

Davis v. United States, 273, 274

Davis v. Washington, 183, 215, 222, 223

Dickerson v. United States, 233, 248

Draper v. United States, 290

Duncan v. Louisiana, 55

E
Edwards v. Arizona, 244

Elkins v. United States, 271

Emery v. State, 414

 Escobedo v. Illinois, 232

Estelle v. Mcguire, 378

F
Ferguson v. City of Charleston, 332

Flippo v. West Virginia, 312

Florida v. Bostick, 284, 314

Florida v. Harris, 283, 293

Florida v. Jardines, 283

Florida v. J.L, 326

Florida v. Riley, 282

Florida v. White, 310

Franks v. Delaware, 302

Frye v. United States, 152

G
Georgia v. McCollum, 55

Georgia v. Randolph, 316

Gideon v. Wainwright, 36, 116, 264

Gilbert v. California, 348

Giles v. California, 184, 215, 222, 223

 Gladden v. Unsworth, 264

Gooding v. United States, 340

Gorham v. Moor, 152

Grady v. North Carolina, 282

Griffen v. Wisconsin, 341

Griffin v. California, 177, 243

Groh v. Ramirez, 274

H
Hammon v. Indiana, 183, 223

Harper v. State, 443

Harris v. New York, 177, 265

Hayes v. Florida, 328, 341

Haynes v. State, 416

Heien v. North Carolina, 293

Herrera v. Collins, 365

Herring v. United States, 273, 339

Hester v. United States, 278

Hiibel v. Sixth Judicial District Court of Nevada, Humbolt County,

326–327

Hoffa v. United States, 277

 Holland v. United States, 55, 368, 394

Holland v. Zollner, 152

Horton v. California, 295

Houston Oxygen Co. v. Davis, 205

Huddleston v. United States, 375

Hudson v. Michigan, 270–271, 299

Hurtado v. California, 21, 25

Page 495

I
Illinois v. Caballes, 283

Illinois v. Escobedo., 239

Illinois v. Gates, 291–292, 325, 340

Illinois v. Krull, 339

Illinois v. McArthur, 318–319

Illinois v. Perkins, 247

Illinois v. Rodriguez, 316

Illinois v. Wardlow, 324

In re A & M, 111

In re Gault, 18, 25

In re Grand Jury Proceedings, 111

 In re Jesusa V., 77

In re Ryan, 112

J
Jackson v. Denno, 256, 261

Jaffee v. Redmond, 1, 9, 88, 99, 100, 111

James v. Illinois, 177

J.D.B. v. North Carolina, 240

Jencks v. United States, 408–409, 420

Johnson v. Louisiana, 31

Johnson v. State, 394

Johnson v. Zerbst, 253

Jones v. United States, 339

K
Kastigar v. United States, 177

Katz v. United States, 275–276, 277, 279, 281, 282, 284, 333

Kirby v. Illinois, 265, 346

Knowles v. Iowa, 304

Kumho Tire Co. Ltd. v. Carmichael, 113

Kyllo v. United States, 280–281, 283

L
Lawson v. State, 420

Leary v. United States, 68, 77

Lego v. Twomey, 265

Lightman v. State, 108

Lilly v. Virginia, 200

Lorraine v. Markel American Insurance Company, 398–399

M
Manson v. Brathwaite, 350, 351, 359, 365

Mapp v. Ohio, 269, 271–272, 339

Marshall v. State, 152

Maryland v. Buie, 305–306, 330, 340, 341

Maryland v. Craig, 83

Maryland v. Garrison, 274, 294

Maryland v. King, 177, 331

Maryland v. Pringle, 289–290

Maryland v. Shatzer, 244

Massiah v. United States, 232, 251, 365

Mata v. Sumner, 365

Mattox v. United States, 222

McCray v. Illinois, 104

McNabb v. United States, 264

Melendez-Diaz v. Massachusetts, 216, 223

Menendez v. Superior Court, 101–102

Met v. State, 443

MG Added State v. Walters, 415

Michaelson v. United States, 395

Michigan Dept. of State Police v. Sitz, 341

Michigan v. Bryant, 183

Michigan v. Mosley, 243, 247

Michigan v. Summers, 327

Michigan v. Tucker, 248–249

Minnesota v. Carter, 333–334

Minnesota v. Dickerson, 276–277, 329

Minnesota v. Olson, 317, 333

Minnick v. Mississippi, 245, 264

Miranda v. Arizona, 164, 177, 232, 233, 237–242, 339

Missouri v. McNeely, 308, 318

Missouri v. Seibert, 177, 250, 265

 Mitchell v. State, 414

Montejo v. Louisiana, 265

Moran v. Burbine, 264

Mullaney v. Wilbur, 77

Murphy v. Waterfront Commission, 173, 177

Mutual Life Insurance Co. v. Hillmon, 206, 207–208

N
National Treasury Employees Union v. Von Raab, 341

Neil v. Biggers, 349, 365

New Jersey v. T.L.O., 330

New York v. Belton, 274, 306, 340

New York v. Quarles, 245

Nix v. Williams, 271

North Carolina v. Butler, 242

O
Ohio v. Clark, 184

Ohio v. Robinette, 313

Olden v. Kentucky, 388

Oliver v. United States, 278

 Oregon v. Elstad, 249

Oregon v. Mathiason, 240

Orozco v. Texas, 240

P
Passman v. Blackburn, 365

Patterson v. Illinois, 254, 265

Patterson v. New York, 77

Patton v. United States, 30, 55

Pena-Rodriguez v. Colorado, 85

Pennsylvania v. Muniz, 246

Pennsylvania v. Ritchie, 152

People v. Alcalde, 209

People v. Butler, 416

People v. Erickson, 414

People v. Ewoldt, 376

People v. Freeman, 55

People v. Garcia, 414

People v. Hardy, 443

People v. Hilligas, 112

People v. James, 208, 222

 People v. Kelly, 264

People v. Laudero, 395

People v. Lisenba, 377

People v. Mayfield, 443

People v. Morgan, 414

People v. O’Brien, 443

People v. O.J. Simpson, 467

People v. Petrella, 415

People v. Riser, 420

People v. Sims, 443

People v. Von Villas, 414

People v. Washington, 222

People v. Wilson, 414

Pointer v. Texas, 116

R
R. v. Smith, 378

Rakas v. Illinois, 333

Ramos v. Louisiana, 31

Rawlings v. Kentucky, 333

Reckard v. State, 111

 Rhode Island v. Innis, 240, 241, 265

Richards v. Wisconsin, 299

Riley v. California, 307–308, 340, 449

Page 496

Ring v. Arizona, 33, 34

Rock v. Arkansas, 66, 67, 77

Rodriguez v. United States, 283

Roviaro v. United States, 103, 104

S
Salam v. Lockhart, 365

Salinas v. Texas, 243

Sandstrom v. Montana, 72, 77

Schmerber v. California, 308

Schneckloth v. Bustamonte, 312–313

Schoen v. Schoen, 112

Scott v. Illinois, 365

Silverthorne Lumber Co. v. United States, 269

Simmons v. United States, 350

Skinner v. Railway Labor Executives’ Assn, 341

Smith v. Maryland, 279

Snyder v. Massachusetts, 443

Spano v. New York, 232, 236, 264

Sparf and Hansen v. United States, 55

State v. Armstrong, 416

State v. Axley, 414

State v. Bertul, 222

State v. Bowers, 415

State v. Cassidy, 388

State v. Cintron, 443

State v. Davlin, 416

State v. Drake, 416

State v. Garcia, 416

State v. Grady, 339

State v. Krone, 222

State v. Lefferty, 443

State v. Maluia, 414

State v. McNaught, 152

State v. Nance, 416

State v. Thompkins, 152

State v. Thompson, 438, 443

 State v. Vesssichio, 414

State v. Williams, 420

State v. Wilson, 415

State v. Zayas, 414

Steagald v. United States, 25

Stovall v. Denno, 349

Styers v. Smith, 365

T
Tanner v. United States, 84

Tarasoff v. Regents of University of California, 101

Taylor v. Illinois, 152

Terry v. Ohio, 322

Texas v. White, 340

Thornton v. United States, 306

Tome v. United States, 177

Trammel v. United States, 88, 89, 111

U
United States Department of Justice v. Landano, 105

United States v. Abel, 152, 177

United States v. Arvizu, 325

United States v. Ash, 365

United States v. Bagley, 365

United States v. Booker, 52

United States v. Bryan, 111

United States v. Copelin, 152

United States v. Damsky, 365

United States v. Donahue, 365

United States v. Drayton, 285, 313

United States v. Duffy, 404

United States v. Dunbar, 365

United States v. Edwards, 305

United States v. Grubbs, 301

United States v. Harris, 413

United States v. Havens, 177

United States v. Henry, 253

United States v. Jacobsen, 283, 340

United States v. Jakobetz, 365

United States v. Jarrad, 365

United States v. Jones, 281

United States v. Karo, 280

United States v. Knights, 331, 341

United States v. Knotts, 280

United States v. Larkin, 365

United States v. Leon, 272

United States v. Lewis, 365

United States v. Marchand, 365

United States v. Martinez-Fuerte, 341

United States v. Matlock, 316, 340

United States v. McHorse, 384

United States v. Mendenhall, 340

United States v. MHC Surgical Centers Associates, Inc., 112

United States v. Monsour, 365

United States v. Montoya de Hernandez, 341

United States v. Napier, 222

United States v. Nobles, 420

United States v. Oates, 223

United States v. Patane, 249

United States v. Pheaster, 208–209

United States v. Place, 283, 341

 United States v. Ramirez, 299

United States v. Robinson, 304

United States v. Rundell, 365

United States v. Russell, 365

United States v. Scheffer, 116

United States v. Sharpe, 328, 341

United States v. Smith, 222

United States v. Spinelli, 291

United States v. Wade, 265, 345–346, 347, 365

United States v. Waloke, 443

United States v. Watson, 291

United States v. White, 278

United States v. Withorn, 385, 395

United States v. Jackson, 414

Utah v. Strieff, 270

V
Valde v. Schmer, 365

Vale v. Louisiana, 318

Vernonia School District 47J v. Acton, 341

Victor v. Nebraska, 37, 55

W
Waldrop v. State, 414

Warden v. Hayden, 319, 340

Warger v. Shauers, 84

Weeks v. United States, 269

Welsh v. Wisconsin, 320

West Virginia v. Chambers, 152

White v. Illinois, 222

Williamson v. United States, 200

Williams v. Florida, 30, 420

Williams v. Illinois, 116, 217

Wilson v. Arkansas, 298–299

Wilson v. Layne, 297–298

Wong Sun v. United States, 270, 365

Woodards v. Cardwell, 443

Wyoming v. Houghton, 311

Y
Ybarra v. Illinois, 329
Page 497

Subject Index
A
ABA Model Parent-Child Privileges Statute, 93

abandoned property, 283, 284

accidental (fingerprint pattern), 371

accident investigator, 141

accident reconstructionist, 141

accountant-client privilege, 105–106

accuracy, photographs, 453–455

accusatory jury, 6, 7

accused. See defendant

The Accused (film), 387

acoustical spectrography, 144

actus reus, 375, 378

admissions, 194–195, 228–230

adoptive opposing party’s admission, 230

adoptive opposing party’s statement (admission), 194

adverse witness, 122

aerial surveillance, 282

affiant, 302

affidavit, 20, 80

affirmative defense, 49

age, 129

aggravating factors, 33

alternates, 33

ambiguous and/or unintelligible question (objection), 47

anonymous source, search warrant, 291–292

anonymous tip, 325

anticipatory warrant, 301

apparent authority, 316–317

apparent authority doctrine, 317

appeal, 9, 12

appearance, 472–473

arraignment and plea, 9, 22

arrest, 19–20, 301

arrest warrant, 19

artificially reconstructed crime scene, 460

 assertion-based test, 184–185

assistance of counsel. See right to counsel

attenuation doctrine, 270

attesting witness, 454

attorney, 94

attorney-client privilege

attorney/client, defined, 94

communication between attorney and client, 96–97

communications in presence of a third person, 96

crimes exception, 97

myth vs. fact, 95

waiver of privilege, 97

when privilege created, 95

Attorney General of the United States, 14

authentication, 398–399, 453–460

autopsies, photographs of, 452

B
bad character for truthfulness, 123, 159–162

bail, 20

Bailey, F. Lee, 166

bailiff, 13

balancing test, 59, 372, 450

basic fact, 67

bench trial, 29

Bentham, Jeremy, 102

best evidence rule, 145–146, 399–400, 448

bias, 124, 165–167

Bigger’s five-factor analysis, 357–362

accuracy of the description, 359

factors, listed, 357

length of time between crime and confrontation, 360–361

level of certainty, 360

witness’s degree of attention, 358–359

witness’s opportunity to view criminal, 357–358

bill of indictment, 22

births, deaths, marriages (records), 217

Black Panther (film), 62, 63

blanket immunity, 172

blood grouping evidence, 137

blood samples, 308

 bond, 20

booking, 8–9

Border Patrol, 13

Brady material, 405

“Brides of the Bath,” 378

Brooke, Henry (Lord Cobham), 181, 182

Bryant, Kobe, 60, 388

burden of proof, 35–38, 70, 73–74

Bureau of Alcohol, Tobacco, and Firearms, 13

Bureau of Postal Inspection; and the Secret Service, 13

burglary, 190

business records exception, 212–217

C
case-in-chief, 40

central pocket loop (fingerprint pattern), 371

certified copy, 402

chain of custody, 5, 427, 429–433, 457

challenges for cause, 32

character, 381–382

character evidence, 129–130

character evidence rule, 159, 374

character of victim, 385–389

character of witness, 390–391

character witness, 162

charge to the jury, 50–51

charging the crime, 20–22

chemist, drug testing, 136

chief prosecuting attorney, 13–14. See also prosecutor

child molestation/sexual assault cases, 381, 384–385, 386–389

Page 498

children

crime and, 72

as witness, 81–83

“Christian burial” speech, 241

circuit court, 17

circumstantial evidence

accused as witness, 391

character of defendant, 381–382

character of victim, 385–389

character of witness, 390–391

 consciousness of guilt, 380–381

defined, 369–370

direct evidence versus, 368–373

doctrine of chances, 378

functions, 373

jury instruction, 368

means or capability to commit a crime, 379–380

misconduct evidence, 373–379

modus operandi, 379

myth vs. fact, 374, 387, 389

“opening Pandora’s box,” 383

“other crimes” evidence, 373–379

relevance of, 371–372

sexual assault/child molestation cases, 381, 384–385, 386–389

use of, 370–371

Clark, Marsha, 462

clear and convincing, 37

clergy, 102

clergy-communicant privilege, 102–103

client, 94
Clinton-Lewinsky affair, 93

closing arguments, 50

clothing, 472–473

Cobham, Lord, 181, 182

Cochran, Johnny, 40, 440, 462

co-conspirator’s statement, 195

codefendant, 259–260

coerced confession, 233–236

collateral matter, 402

color vs. black-and-white photographs, 451

common authority, 315

common-law knock-and-announce principle, 299

communicant, 102

communication penitential, 102–103

communications, attorney-client relationship, 96–97

competence

privileged relationship, contrasted, 89

witness, 81–85

competent evidence, 61

compound question (objection), 47

Compulsory Process Clause, 116, 117

compurgators, 6

computer demonstrations and experiments, 439

computer-generated animations, 439, 462

computer simulations, 448

conclusion, 126

conclusive presumption, 68

confession, 230–260

attorney-client privilege, 96–97

codefendant, and, 259–260

coercion, 233–236

corpus delicti, 260

“curative measures,” 250

custody, 237, 239–240

defendant’s objection to confession at trial, 257

defined, 228

deliberate elicitation, 252

Edwards rule, 244

exclusionary rule, 248–251

free and voluntary rule, 231

fruit of the poisonous tree doctrine, 248–250

historical overview, 230–231

impeachment exception, 250

importance of, as evidence, 254–256

inhumane treatment, 234–235

interrogation, 240–241

irrelevant details/other incriminating evidence, 258–259

Massachusetts procedure, 256

McNabb-Mallory rule, 232

Miranda rights, 237–250

Miranda rule, 237, 239

Miranda warnings, 233, 237, 238

orthodox procedure, 256

overview (defendant’s rights), 252

physical force, 234–235

preamble, 258

psychological pressure, 235–236

public safety exception, 245–246

question-and-answer form, 258

right to counsel, 250–254

 routine booking question exception, 246

totality of circumstances, 233–234

undercover police questioner exception, 247

unlawful search and seizure, 254

waiver of Miranda rights, 242

wording, 257–259

confidential informant, search warrant, 291–292

confidential informer. See informers

Confrontation Clause, 80, 82, 116, 182–183

Connecticut Code of Evidence, 8

consciousness of guilt, 380–381

consent, 312

consent search, 312–317

Constitution of the United States

Confrontation Clause, 80, 82, 116, 182–183

criminal procedural requirements, 17

inadmissibility of accused’s statements, 164–165

right to counsel, 250–254

self-incrimination, 170

unreasonable search and seizure. See search and seizure

 witnesses, 116

contempt, 35

contraband, 4, 287, 427

contradiction, 162–163

contradiction by cross examination, 123

contradiction generally, 162–163

contradictory evidence, 62, 63

copy, 399, 400

certified, 402

exemplified, 403

coroner/medical examiner, 139

corpus delicti, 42, 260

correctional institutions and agencies, 18–19

Page 499

corroborative evidence, 62, 63

County Attorney, 13

courtroom demonstrations and experiments, 439–440

court system, 14–17

court trial, 29

credibility, 156–157
crime or fraud exception to husband-wife privilege, 92

crime scene, 427–428

artificially reconstructed, 460

posed/reconstructed, 460

crimes exception to attorney-client privilege, 97

crimes experts, 141

criminal complaint, 19

criminal convictions, prior, 159–161

criminalist, 23, 134, 141

criminal justice system

overview (flowchart), 10–11

participants, 12–19

criminal trial. See trial process (jury trial)

critical stage, 251, 345

cross-examination, 46–48, 122–125, 481–483

Cruz, Nikolas, 440

cumulative (objection), 47

cumulative evidence, 62–63

“curative measures,” 250

curtilage, 278
 custodial interrogation, 237, 239

custody, 237, 239–240

custody and control, 430–431

Customs Service and the Immigration and Naturalization Service, 13

D
dangerous patient exception, 101

Daubert-Kumho test, 133–134

DEA. See Drug Enforcement Administration (DEA)

declarant, 182

availability, as witness, 205

declarant-based test, 185

declaration, 80

declaration against interest, 199–200

declaration, dying. See dying declaration

defendant

accused as witness, 391

appeal, 12–19

character evidence, 385–389

confessions/admissions, 251, 252

constitutional rights, 17
 double jeopardy, 34, 51

exonerating, 405

identity of informers and, 411–412

pretrial discovery by, 412

right to remain silent, 173

self-incrimination, 170–173

taking the witness stand, 171, 173

defendant’s good character rule, 381–382

defense counsel, 14

defense presentation, 49

defense’s surrebuttal, 50

deliberate elicitation, 252

demonstrations and experiments, 439–440

demonstrative diagrams/charts, 461

demonstrative evidence, 424, 447. See also physical evidence

Department of Justice guide (identification procedures), 361

deposition, 80, 211

derivative fruit of the poisonous tree, 248–249

destroyed documents, 401. See also documentary evidence

detention, duration of, 327

deterrence rationale, 272

digital recorder, 202

direct evidence, 369

versus circumstantial evidence, 368–373

defined, 369

direct examination, 45, 121

discovery, 404–405, 404–413, 408, 412, FRCrP 16

Brady material, 405

defined, 9, 404

“fishing expedition,” 412

FRCrP 16, 404–405, 408, 412

growth of the right of, 407–408

identity of informers, 411–412

information about prospective witnesses, 410–411

investigative notes and recordings, 413–417

Jencks Act, 408–409

officer’s notes/notepad, 147

preliminary hearing, 407–408

pretrial, 409–412

prosecution’s right to discovery, 412–413

distances, 128

distinctive characteristic, 457

District Attorney, 13

district court, 14–15, 17

DNA evidence, 137–138, 141–142

doctor-patient privilege, 97–102

doctrine of chances, 378

doctrine of completeness, 216

documentary evidence

authentication, 398–399

best evidence rule, 399–400

collateral matter, 402

definitions, 398

document in custody of public officer, 402–403

document in possession of adverse party, 402

inscribed chattel, 403

lost or destroyed documents, 401

myth vs. fact, 400

original document, 403

primary vs. secondary evidence, 400–401

 public records, 402–403

voluminous records rule, 403

document camera, 462

document examiner, 140

dog sniff, 282, 283–284

domestic abuse cases, 215

double jeopardy, 34, 42, 51

Double Jeopardy (film), 42

double loop (fingerprint pattern), 371

dressing, 472–473

driving under the influence, 308

Drug Enforcement Administration (DEA), 13, 283

Page 500

drug testing, error in, 136

duplicate, 399, 400, 448

duration of detention, 327

dying declaration, 195–199

declarant’s belief in impending death, 196–197

declaration must relate to cause of death, 197

defined, 195
 form of, 197–198

foundational requirements, 196

myth vs. fact, 196

unavailability of declarant, 196

weight to be given to declaration, 198–199

who may use the declaration, 198

E
Edwards rule, 244

ELMO, 462–463

emergency or exigent circumstances, 354

enhanced surveillance techniques, 279–282

evidence

blood grouping, 137

character, 129–130, 162

circumstantial. See circumstantial evidence

classifications, 5, 58

competent, 61

contradictory, 62, 63

corroborative, 62, 63

cumulative, 62
defined, 4

demonstrative, 424, 447

direct, 369

DNA, 137–138, 141–142

documentary, 398

exculpatory, 36, 404

FRE, 7–8

hearsay. See hearsay rule

material, 60–61

misconduct, 373–379

motion to suppress, 334–335

photographic prints as, 461

physical. See physical evidence

polygraph, 143–144

prima facie, 62

primary, 400

real, 424

rebuttal, 49–50

relevant, 58–60

reputation, 162, 218

 secondary, 400–401

substantive, 447

surrebuttal, 50

evidence locker, 4

evidence of a crime, 287, 427

evidence of other crimes, acts, or wrongs, 374

evidentiary objections, 45

examination of witnesses, 43–49

close of prosecution’s caseinchief, 49

cross-examination, 46–48, 122–125

direct, 45, 121

objections, 45–46

re-cross and subsequent examinations, 48

redirect examination, 48

sequence of witnesses, 43–45

excited utterance, 201–202. See also spontaneous utterances

exclusionary rule, 165, 248–251, 268

confession, 248–251

defined, 248

deterrence rationale, 272

 good faith exception, 272–273

historical overview, 268–272

identification procedures, 344. See also identification procedures

impeachment exception, 275

unreasonable search and seizure. See search and seizure

exclusion of witnesses, 473

exclusive control, 430

exculpatory evidence, 36, 148, 404

exemplified copy, 403

exigent circumstances search, 317–320

exonerating the defendant, 405

expectation of privacy, 276, 277

expert on mental illness, 142

expert witness, 132–145

accident investigator, 141

blood grouping evidence, 137

court appointment of, 139

crimes expert, 141

criminalist, 134, 141

Daubert-Kumho test, 133–134

 defined, 132

DNA expert, 138, 141–142

document examiner, 140

fingerprint expert, 140–141

footprint expert, 142

Frye test, 133

handwriting comparisons, 140

hypothetical question, 138

medical examiner/coroner, 139

photographer, 145

polygraph expert, 143–144

psychologist/psychiatrist, 142

role of judge and jury, 135–136

skid-mark expert, 141

speed expert, 141

voiceprint expert, 144–145

voir dire, 134–136

“Eyewitness Evidence: A Guide for Law Enforcement,” 361

eyewitness identification, 352–353. See also identification procedures

F
factoids. See myth vs. fact

fair probability, 289, 293

false friend doctrine, 277–278

false testimony, 156

family records, 218

FBI, 13

Federal Bureau of Investigation (FBI), 13

federal court system, 14–15

Federal Express, 283

federal general credibility instruction, 157

federal law enforcement agencies, 13

Federal Rules of Evidence (FRE), 7–8

felony, 21, 22

felony convictions, 159, 160

Ferguson, Colin, 39

fillers, 361

fingerprint expert, 140–141

fingerprint patterns, 371

“fishing expedition,” 412, 480

“five-o-deuce,” 478
Page 501

flow of cases (North Carolina), 16

FOIA, 104–105

footprint expert, 142

forcible removal of suspect, 327–328

forensic investigator, 13

forensic reports, 217

forensic scientist, 141. See also criminalist

former testimony exception, 211–212

foundation, 450

Fourteenth Amendment’s Due Process Clause, 36

Fourth Amendment. See search and seizure

Franks test, 302

FRCrP 16, 404–405, 408, 412

FRE, 7–8, 184–185

free and voluntary rule, 231

Freedom of Information Act (FOIA), 104–105

freedom of the press, 106

Frey, Amber, 379

frisk, 324
 fruit of a crime, 287, 427

fruit of the poisonous tree doctrine, 248–250, 269

Frye test, 133

Fuhrman, Mark, 125, 166

further questioning (subsequent examinations), 48

G
garbage, 283, 284

genetic fingerprint, 137

geographical facts, 64–65

Geragos, Mark, 40

Goldman, Ronald, 390, 452

“good cop, bad cop,” 236

good faith exception, 272–273

Gordon, Larry Darnell, 120

gory objects, 438

GPS tracking device, 281–282

grammar and voice, 41, 476–477

grand jury, 7, 21–22

grisly scene, 451

groundless objections, 46
 gruesome objects, 438–439

gruesome photos and videos, 451–452

H
habeas corpus, 17

handwriting, authentication of, 130–131, 140

Health Insurance Portability and Accountability Act of 1996 (HIPAA),

98

hearing in camera, 89

hearsay (objection), 47

hearsay, defined, 180

hearsay rule, 180–218

admissions, 194–195

business and public records, 212–217

categories of exemptions, 192

Confrontation Clause, 182–183

declaration against interest, 199–200

dying declaration, 195–199

former testimony, 211–212

medical diagnosis or treatment, 209–210

myth vs. fact, 181, 185, 187, 189, 193, 194, 196, 211
 not offered for truth of matter asserted, 188–192

offered for truth of matter asserted, 186

overview (flowchart), 188

overview (table), 223–224

past recollection recorded, 218

pedigree or family history, 217–218

principles and examples, 223–224

prior statements by witnesses, 192–194

rationale for the rule, 182–184

spontaneous utterances, 200–205

statement, defined, 184–185

state of mind, 205–211

high-tech evidence, 449–450

HIPAA, 98

historical overview

confession, 230–231

jury size, 31

rules of evidence, 7–8

trial by jury, 6–7

Hoffa, Jimmy, 277

 holder of a privilege, 88

Homeland Security, 13

homicide victim, 385–386, 389

hostile remarks, 166

hot pursuit, 317

hung jury, 51

“hurry up and wait,” 117

husband and wife relationship

communication overheard by third party, 92–93

crime or fraud exception, 92

information gained before marriage, 91–92

marital communications privilege, 90–91

spousal incapacity privilege, 89–90

hypnosis, 66, 67

hypothetical question, 138

I
ICE, 13

identification by custody and control, 430–431

identification by proof of chain of custody, 431–433

identification card, 458

identification procedures, 344–362

Bigger’s five-factor analysis, 357–362

collaboration between witnesses, 354

Department of Justice guide, 361

different appearances of accused, 355

exclusionary rule and, 344

photo arrays, 355–357

police instructions or statements to witness, 354–355

right to counsel, 344–347

sample jury instructions, 347–348

size of lineup or array, 353–354

types, 344

unnecessarily suggestive pretrial identification, 348–353

identity, 129

identity of informer privilege, 103–105

ignorance of the law, 73

Page 502

“immediate control” of arrestee, 303

imminent destruction of evidence, 317, 318

impeachment, 123, 158–170

 bad character for truthfulness, 159–162

bias, 165–167

contradiction, 162–163

defined, 158, 382

hostility or prejudice, 166

impeaching one’s own witness, 169–170

methods of, 158–159

misconduct, 161

myth vs. fact, 160, 161, 163, 165, 166

prior criminal convictions, 159–161

prior inconsistent statements, 163–165

rehabilitation of impeached witness, 168–169

religious beliefs and opinions, 168

self-impeachment, 168

witness incapacity, 167

impeachment exception, 250, 275

imperfect self-defense, 60

implied opposing party’s admission, 230

improper impeachment (objection), 47

incapacity, presumption of, 72

incompetency, 80

incompetent (objection), 47

incompetent evidence, 61

inconsistent statements, 163–165, 193

independent source doctrine, 269

indicia of reliability, 357

indictment, 21, 22

indirect evidence, 369. See also circumstantial evidence

inevitable discovery doctrine, 270, 271

inference, 67–68

inferior court, 17

inflammatory evidence, 439

information, 22

volunteering, 479

informers

discovery, 411–412

identity of informer privilege, 103–105

search warrant, 291–292

inhumane treatment, 234–235

initial appearance, 9
 innocence, presumption of, 71

insanity, 71–72

Insanity Defense Reform Act (1984), 71

inscribed chattel, 403

instrumentality of a crime, 287, 427

insufficient foundation (objection), 47

intent, 375

interrogation, 240–241

intoxication, 129

inventory search, 311–312

investigative notes and recordings, 413–417

investigative report (as means of refreshing recollection), 148

irrelevant (objection), 47

Ito, Lance, 462

J
Jackson, Michael, 191, 453

jails, 18

jargon, 477–478

Jencks Act, 408–409

jeopardy, 34, 42, 51

judge

expert witness, and, 135–136

search warrant, and, 287

trial process, and, 35

witness, as, 84

judge’s instructions to jury, 50–51, 69

judgment of acquittal, 43

judicial notice, 63–67

defined, 63

geographical facts, 64–65

public statutes, 64

scientific/medical facts, 65–67

time, days, and dates, 65

words, phrases, and abbreviations, 65

judicial records, 398

jurisdiction, 14–15

juror

qualifications, 32

as witness, 84

jury deliberation, 51
 jury instructions, 50–51, 69

jury nullification, 34–35

jury selection, 32–33

jury size, 31

jury trial. See also pretrial process

jury voir dire, 32–33

justice of the peace court, 17

juvenile court system, 17

K
Kaelin, Brian “Kato,” 390

Kentucky statute, 86

Knapp, John Francis, 380

knock and announce, 298–300

knock and notice, 298–300

knowledge of the law, 73

L
lab reports, 216–217

latent fingerprint patterns, 370, 373

law enforcement officers, 12–13

admission/confession, 231

authentication of physical evidence, 425

children and, 82

circumstantial evidence, 371

conduct before/during court session, 474–476

conferring with prosecutor, 473, 475

confidential informant, 103–105, 292

credibility assessments, 157

defense counsel, and, 166

destroying original notes, 414–417

diagrams/other visual aids, 461

digital recorder, 202

exiting the courthouse, 483

grisly scene, 451

identity of informer privilege, 103–105

interviewing suspect/witness, 190

jurisdiction of court, 64

Page 503

marking objects for identification, 433

Miranda warnings, 240

mortal wound, 451

notes/notepad, 147

on-call, 471

photo array, 356

photographs/video recordings, 450, 455

police chemist’s sloppy work, 136

precautionary steps, 429

preliminary hearing, 21

pretrial issues, 23

recording interviews/encounters, 67, 202, 231

report writing, 48

reviewing case after verdict, 483

search warrant, 291, 292, 296

service record/training classes, 483

sitting at counsel table, 120, 474

standard required to act, 30

subpoena, 44, 471

treat judge and court personnel with respect, 36

violence in court, 120

walking to the witness stand, 476

 what to do before the trial, 471–472

what to wear in court, 472–473

when the witness forgets testimony, 481

where to appear and what to do, 473–474

witness for the “other side,” 170

law enforcement reports, 215–217

law of evidence, 4, 5

laying the foundation

defined, 399, 424

identification of object, 457

opinion evidence, 127–128

past recollection recorded, 148–149

physical evidence, 424–425

lay opinion testimony, 126. See also opinion testimony of lay witness

lay witness, 121–132. See also witness

cross-examination, 122–123

defined, 121

direct examination, 121

opinion testimony, 126–131

terminology, 131–132
 leading question, 45, 121, 122, 145

legal relevancy, 450

less-than-probable-cause detention, 328

Lewinsky, Monica, 93

lineup, 344

list of witnesses to be called to testify, 169

Long Island Railroad Massacre, 39

loop (fingerprint pattern), 371

lost or destroyed documents, 401

M
making the record, 40–41

mandatory presumption, 69, 70–71

marital communications privilege, 90–91

marking objects for identification, 433–435

Massachusetts procedure, 256

material evidence, 60–61

McNabb-Mallory rule, 232

medical diagnosis or treatment, 209–210

medical examiner/coroner, 139

medical facts, 64–67

medical information and privilege, 97–101

memory recall techniques, 66

Menendez, Erik, 60, 101–102

Menendez, Lyle, 60, 101–102

mens rea, 375

mental fitness, 80, 83–84

mere hunch, 37

Miranda rights, 237–250

Miranda rule, 237, 239

exceptions to, 245–247

Miranda warnings, 14, 233, 237, 238

miscellaneous facts. See myth vs. fact

miscellaneous rebuttable presumptions, 72

misconduct evidence, 373–379

misdemeanor, 21

Mitchell, John, 164

Model Code of Evidence, 7

modus operandi, 379

mortal wound, 451

motion in limine, 372

motions

exclude/admit evidence, 372

pretrial, 22–23

suppress evidence, 334–335

motion to suppress, 334–335

motive, 375

municipal court, 17

myth vs. fact

accuracy of photograph, 455

admissibility of image/recording, 456

admissibility of out-of-court statements, 193

admissions, 194, 229

attorney-client privilege, 95

best evidence rule, 400

blood typing evidence, 137

circumstantial evidence, 374, 387, 389

consent search, 316

defendant taking the witness stand, 171

documentary evidence, 400

double jeopardy, 42
 dying declaration, 196

hearsay rule, 181, 185, 187, 189, 193, 194, 196, 211

impeachment, 160, 161, 163, 165, 166

medical statements exception, 211

mental fitness to testify, 80

physician-patient privilege, 99

rape shield laws, 387

statements by homicide victim, 389

trial, “hurry up and wait,” 117

uncharged misconduct evidence, 374

N
narrative questioning, 122

National Academy of Science, 362

neutral magistrate, 287

news reporter, 107

news reporter-new source privilege, 106–108

Page 504

nighttime search warrant, 295–296

“no-knock” warrant, 297, 299, 300

nolo contendere, 9
 notes/notepad (of officer), 147

notice to produce, 402

NOTMA. See not offered for truth of matter asserted (NOTMA)

not offered for truth of matter asserted (NOTMA), 188–192

operative legal fact, 189

statement to prove something else, 191–192

state of mind of the declarant, 190

state of mind of the hearer, 189–190

“traces of the mind” theory, 191

not the best evidence (objection), 47

nude photographs, 452–453

numbering on the photographs, 459

O
O. J. Simpson trial

attorney-client relationship, 94

chain of custody (Bronco), 5

criminal trial vs. civil trial, 29

defense theme/theory of case, 40

DNA evidence, 138

ELMO, 462
 fitness video/debilitating arthritic condition, 446

footprint expert, 142

Fuhrman, Mark, 125, 166

jury instructions, 50

Kaelin, Kato, 390

low-speed chase (Ford Bronco), 380

manila envelope, 96

motion to suppress, 334–335

photographs of autopsies, 452

search warrant, 288

sequestered jury, 51

time stamp, 459

trying on the glove, 440

viewing the crime scene, 440

objections, 45–46, 47, 479

offered for truth of matter asserted, 186

officers. See law enforcement officers

on-call, 471

on the job. See law enforcement officers

open fields doctrine, 278

“opening Pandora’s box,” 383

opening statements, 39–40

operative legal fact, 189

opinion, 126

opinion as to character, 382

opinion testimony of lay witness, 126–131

age, identity, and physical condition of person, 129

character of a person, 129–130

distances, 128

handwriting, authentication of, 130–131

laying the foundation, 127–128

miscellaneous matters—weight, color, value, etc., 129

sanity, 130

sobriety or intoxication, 129

speed of vehicles, 128

state of emotion, 128

opposing party’s statement (admission), 194, 228, 229–230

ordinary witness. See lay witness

ordinary witnesses. See lay witness

original document, 403

 orthodox procedure, 256

“other crimes” evidence, 373–379

out-of-state witness, 119–120

overheads and transparencies, 462

overrule the objection, 479

overview (criminal justice system), 10–11. See also pretrial process;

trial process (jury trial)

P
parent-child privilege, 93–94

parole, 19

parole service, 19

past recollection recorded, 146–148, 218

investigative report, 148

laying the foundation for, 148–149

patient, defined, 100

pattern instructions, 51

pedigree or family history exception, 217–218

penitential communication, 102–103

pen register case, 279

peremptory challenge, 32
perjury, 126

permissive presumption, 69, 70–71. See also rebuttable presumption

persons of questionable mental stability, 83–84

persuasion burden, 70

Peterson, Scott, 40, 144, 379–380

petit jury, 7

petty offense, 21, 30

photocopy, 448

photographer as expert witness, 145

photographic array, 344, 354, 355–357

photographs, recordings, and computer-generated evidence, 446–464

accuracy, 453–455

attesting witness, 454

authentication, 453–460

chain of custody, 457

color vs. black-and-white photographs, 451

definitions, 398, 446

demonstrative diagrams/ charts, 461

distinctive characteristic, 457

ELMO, 462–463
 expert photographer/ videographer not necessary, 455–457

gruesome photos and videos, 451–452

high-tech evidence, 449–450

how many photographs to take, 463

identification card, 458

lost, 401

myth vs. fact, 455, 456

nude photographs, 452–453

numbering, 459

Page 505

photographic prints as evidence, 461

pictorial testimony vs. silent witness theory, 446–447

place of measurement device at scene, 459–460

posed/reconstructed scenes, 460

preparing evidence for trial, 463–464

projected images, 446–447, 462–463

relevance, 450

uses, 448–449

viewing of, 440

physical condition, 129

physical evidence, 424–440

attacking, 426

categories, 427

chain of custody, 427

computer-generated animations, 439

connecting objects with issues at trial, 429–433

crime scene, 427–428

custody and control, 430–431

defined, 424

delivering, 437

demonstrations and experiments, 439–440

gruesome objects, 438–439

introducing, 425–426

laying the foundation, 424–425

marking objects for identification, 433

physical objects not produced in court, 439–440

preparation of evidence for use in court, 437

relevance, 424

sources of, 426–428

storage, 435–437
physical intrusion test, 282

physician-patient privilege, 97–102

pictorial testimony, 447

plain feel doctrine, 329

plain view doctrine, 294–295, 317, 320–322

plain whorl (fingerprint pattern), 371

plea, 22

plea bargaining, 20

police

functions, 12

private police agencies, 12

police chemist’s sloppy work, 136

police instructions, 354–355

police jargon, 477–478

police officers. See law enforcement officers

police reports, 215–217

polygraph evidence, 66

polygraph expert, 143–144

posed/reconstructed crime scene, 460

preliminary hearing, 9, 20–21, 407–408

preponderance of the evidence, 28, 29, 37, 69

pre-sentence investigation report (PSI), 9

present sense impression, 201. See also spontaneous utterances

presumed fact, 67

presumption, 67–73

burden of proof, and, 70

conclusive, 68

defined, 67

incapacity, 72

inference, contrasted, 67–68

innocence, 71

jury instructions, and, 69

knowledge of the law, 73

mandatory, 69, 70–71

not evidence, 73

rebuttable, 70, 72

sanity, 71–72

true, 68, 70–71

pretrial discovery, 36, 409–412

pretrial identification procedures, 344. See also identification

procedures
 illegal, 347–348

suggestive, 348–353

pretrial motions, 22–23

pretrial process. See also trial process (jury trial)

arraignment and plea, 9, 22

arrest, 19–20

bail, 20

booking, 8–9

charging the crime, 20–22

discovery, 9

grand jury, 21–22

initial appearance, 9

plea bargaining, 20

preliminary hearing, 9, 407–408

pretrial motions, 22–23

prima facie case, 37, 42

prima facie criminal case, 62

prima facie evidence, 62

primary evidence, 400

principle of personal autonomy, 233

prior bad acts evidence, 374

prior consistent statements, 168–169, 193

prior criminal convictions, 159–161

prior inconsistent statement, 124, 163–165, 193

prior statements by witnesses, 192–194

prison, 18

private documents, 398

private police agencies, 12

privilege against self incrimination, 170. See also self-incrimination

privileged communications

accountant-client privilege, 105–106

attorney-client privilege, 94–97

clergy-communicant privilege, 102–103

competency vs. privileged relationships, 89

conditions precedent, 86

defined, 85

general principles, 88–89

husband and wife relationship, 89–93

identity of informer privilege, 103–105

Kentucky statute, 86
 news reporter-new source privilege, 106–107

parent-child privilege, 93–94

physician-patient privilege, 97–102

proposed privilege rules, 87, 88

psychotherapist-patient privilege, 99–100

Page 506

privileged material (objection), 47

probable cause, 37, 287

preliminary hearing, 407–408

search warrant, 289–290, 334

totality of circumstances for, 290, 292–293

probable cause to arrest, 19, 290

probable cause to search, 289

probation, 18–19

probation department, 18

production burden, 70

profanity and vulgarity, 477

projected images, 446–447, 462–463

prompt arraignment rule, 232

proof beyond a reasonable doubt, 29, 36–37

proof by a preponderance of the evidence, 29, 37, 69

proposed privilege rules, 87, 88

Prosecuting Attorney, 13

prosecuting attorney, 13. See also prosecutor

“prosecution rests its case,” 49

prosecution’s case-in-chief, 41–43

prosecution’s rebuttal, 49–50

prosecutor, 13–14

responsibilities before trial begins, 36

right to discovery, 412–413

trial, at. See trial process (jury trial)

protective sweep, 305

PSI, 9

psychiatrist, 142

psychological pressure (confession), 235–236

psychologist, 142

psychotherapist, defined, 100

psychotherapist-patient privilege, 99–100

public documents, 398

public records, 212–213, 214, 402–403

 public safety exception, 245–246

public statutes, 64

Q
qualifying to be a witness, 81

questioned document comparisons, 140

R
Raleigh, Walter, 181, 182

rape shield laws, 60, 387–388

Rashomon (film), 28

Rashomon syndrome, 28

real evidence, 424. See also physical evidence

real-life examples. See O. J. Simpson trial

reasonable alternative hypothesis instruction, 368

reasonable diligence in investigation, 328

reasonable doubt, 28, 29, 36–37

reasonable expectation of privacy, 277

reasonable suspicion, 37, 323, 324–326

rebuttable presumption, 70, 72

rebuttal evidence, 49–50

recognizance, 20

reconstructed crime scene, 460

recorded recollection, 146–147

recording, 398

recording interviews/encounters, 202, 231, 371

re-cross-examination, 48

redirect examination, 48

refreshing recollection, 145–149

rehabilitation of impeached witness, 168–169

rejoinder, 50

release on own recognizance, 20

relevance, 371, 450

relevant evidence, 58–60, 424

religious advisor, 102

religious beliefs and opinions, 168

reputation, 381, 382

reputation evidence, 162, 218

res gestae, 201

return of the search warrant, 301

right to counsel
 attorney-client privilege, 94

confession, 250–254

giving physical evidence, 309

identification procedures, 344–347

right to fair trial, 71

routine booking question exception, 246

rule on witnesses, 120, 473

rules of evidence, 5–6

rulings on objections, 46

S
sanity

lay opinion testimony, 130

presumption, 71–72

scientific knowledge, 133

scientific/medical facts, 65–67

search and seizure

aerial surveillance, 282

apparent authority, 316–317

blood samples, 308

confession, 254
consent search, 312–317

curtilage, 278

defendant’s claim of constitutional violation, 332–335

driving under the influence, 308

exigent circumstances search, 317–320

false friend doctrine, 277–278

frisk, 324

“immediate control” of arrestee, 303

inventory search, 311–312

methods of satisfying reasonability requirement, 285–286

motion to suppress, 334–335

myth vs. fact, 316

open fields doctrine, 278

plain feel doctrine, 329

plain view doctrine, 320–322

protective sweep, 305

reasonable expectation of privacy, 277

reasonable suspicion, 323, 324–326

refusal to give samples, 309

scope, 275
 search/seizure are two separate acts, 275

search warrant. See search warrant

seizure of a person, 284

seizure of property, 284

SILA exception, 302–309

standing requirement, 332–333

stop, 323

Page 507

stop and frisk, 322–330

suspicionless search, 330–332

technologically enhanced searches, 279–282

Terry doctrine, 324–325

vehicle exception, 309–311

search incident to a lawful arrest (SILA), 286, 302–309

search warrant, 286–302

anonymous source, 291–292

anticipatory warrant, 301

confidential informant, 291–292

defendant’s attack on the warrant, 302

defined, 286
 fair probability, 289, 293

Franks test, 302

grounds for issuing warrant, 287

knock and notice, 298–300

night time service of warrant, 295–296

number of officers involved in search, 300

particularity of description of property, 294

probable cause, 289–290, 334

procedure for obtaining warrant, 287–294

return of the search warrant, 301

sample warrant, 288

staleness doctrine, 300–301

time limit on execution of warrant, 300

time limit on length of search, 300–301

use of force in execution of warrant, 298–300

who may serve a warrant, 297

secondary evidence, 400–401

Secret Service, 13

segregation of witnesses, 120

seizure of a person, 284

seizure of property, 284

selection of jury, 32–33

self-authentication, 214

self-defense, 60–61, 386, 389

self-impeachment, 168. See also impeachment

self-incriminating question, 126

self-incrimination, 170–173

claiming the privilege against, 170–171

defendant’s compulsion to take witness stand, 173

defendant’s obligation to physical acts/evidence, 173

general rule, 170

refusal to give samples, 309

testimonial compulsion, 173

waiving the privilege, 171–172

witness’s immunity against prosecution, 172–173

self-representation, 39

self-serving statement, 230

sentencing, 9, 12, 51–52, 440

sequestered jury, 51

sexual assault/child molestation cases, 381, 384–385, 386–389

show-up, 344

SILA exception, 302–309

silence

admission, 230

defendant, 173

silent witness, 447

silver platter doctrine, 271

“similar acts” evidence, 374–375

Simpson, Nicole Brown, 452

Simpson, O. J. See O. J. Simpson trial

six-pack, 355

Sixth Amendment right to counsel. See right to counsel

skid-mark expert, 141

sobriety, 129

source of information, search warrant, 290–292

spectrum of levels of proof, 37

speed expert, 141

speed of vehicles, 128

spontaneous utterances, 200–205

availability of declarant, 205

 excited utterance, 201–202

foundation and rationale for exceptions, 202–203

present sense impression, 201

time element, 203–204

utterance must relate to event just preceding it, 204

spousal incapacity privilege, 89–90

staleness doctrine, 300–301

standards of proof, 37

standing, 332–333

Starr, Kenneth, 93

state court system, 16–17

state evidence codes, 8

statement of cause or condition or pain, 210–211

statements for purposes of medical diagnosis or treatment, 209–210

statements of prior identification, 193–194

state of mind exception, 205–211

availability of declarant, 208

foundation and rationale for exception, 207

inferring declarant’s subsequent conduct, 207–208

medical diagnosis or treatment, 209–210

 statements of causation, 210–211

state of mind declaration, defined, 206–207

state of mind of the declarant, 190

state of mind of the hearer, 189–190

State’s Attorney, 13

Stewart, Larry, 167

Stewart, Martha, 167

stipulations, 74

Stoll, John, 83

stop, 323

stop and frisk, 322–330

storage of physical evidence, 435–437

“stricken from the record,” 46

subpoena, 117–119, 471

subpoena control department, 471

subpoena duces tecum, 117, 402

substantive evidence, 447

suggestive pretrial identification, 348–353

superior court, 17

surrebuttal evidence, 50
 suspicionless search, 330–332. See also search and seizure

sustain the objection, 479

T
tainted evidence, 428

technologically enhanced searches, 279–282

Page 508

technological revolution, 449–450

Terry doctrine, 324–325

testifying. See testimony of law enforcement officers

“testimonial compulsion,” 173

testimonial statements, 215, 217

testimony of law enforcement officers. See also law enforcement

officers

answering questions, 478–480

be courteous, 48

be specific in use of language, 65

cross-examination, 481–483

guidelines/hints, 131

jargon, 477–478

objections, 46, 372, 479

 preparation/rehearsal, 156, 471, 473, 474

present evidence completely and thoroughly, 124

profanity and vulgarity, 477

references to the accused, 478

speak clearly and audibly, 41

voice and grammar, 41, 476–477

volunteering information, 479

when officer forgets testimony, 481

Thelma and Louise, 387

“third degree,” 234

“third-party” doctrine, 279

third person

attorney-client communications and, 96

husband and wife relationship and, 92–93

time element, spontaneous utterances, 203–204

time limit on search warrant, 300–301

time stamp, 458–459

totality of circumstances, 233–234, 349

totality of circumstances for consent, 313–314

totality of circumstances for probable cause, 290, 292–293

“totem pole” hearsay, 209

“traces of the mind” theory, 191

traffic violation, 283

training classes, 483

transactional immunity, 172

transparencies, 462

trial by battle or combat, 6

trial by compurgation, 6

trial of record, 40–41

trial process (jury trial). See also pretrial process

alternates, 33

appeal, 9, 12

burden of proof, 35–38

close of prosecution’s case, 49

closing arguments, 50

cross-examination, 46–48

defense attorney, 38–39

defense presentation, 49

defense’s surrebuttal, 50

direct examination, 45
 further questioning (subsequent examinations), 48

judge, 35

jury deliberation, 51

jury instructions, 50–51

jury nullification, 34–35

jury selection, 32–33

jury size, 31

making the record, 40–41

objections, 45–46, 47

opening statements, 39–40

overview (flowchart), 29

prosecution’s case-in-chief, 41–43

prosecution’s rebuttal, 49–50

qualification of jurors, 31–32

re-cross-examination, 48

redirect examination, 48

sentencing, 9, 12, 51–52

unanimity requirement, 31

verdict, 51

true bill, 22
 true presumption, 68, 70–71

Tsarnaev, Dzhokhar, 237

two-pronged test (search), 277

U
unanimity requirement, 31

uncharged misconduct evidence, 374

undercover police questioner exception, 247

uniform, 472–473

Uniform Rules of Evidence, 7

unintelligible question (objection), 47

United States Constitution. See Constitution of the United States

United States Courts of Appeal, 14, 15

United States Marshals Service, 13

United States Park Service, 13

unnecessarily suggestive pretrial identification, 348–353

unreasonable search and seizure. See search and seizure

unresponsive answer, 126

use and derivative use immunity, 172

V
vehicle exception, 309–311

vehicles, speed of, 128

venire, 32

venue, 15–16

verdict, 51

vicarious opposing party’s statement (admission), 195

videos, 447–448. See also photographs, recordings, and computer-

generated evidence

viewing the crime scene, 440

visual presenter, 462

visual presenters, 462–463

voice and grammar, 41, 476–477

voiceprint expert, 144–145

voir dire

expert witness, 134–136

jury, 32–33

witness, 81

voluminous records rule, 403

voluntary rule, 231

volunteering information, 479

vulgarity and profanity, 477

W
wager of battle, 6

wager of law, 6

Warren, Earl, 7

Webster, Daniel, 380

the well, 476

White, Joseph, 380

“wingspan,” 305

Page 509

witness

accused as, 391

adverse, 122

attendance, 117–118

attesting, 454

availability of declarant as, 205

becoming, 116–120

character of, 390–391

children as, 81–83

collaboration between, 354

competence, 81–85
 constitutional provisions, 116

examination of, 43–49. See examination of witnesses

exclusion of, 473

expert. See expert witness

immunity against prosecution, 172–173

impeachment. See impeachment

judge as, 84

juror as, 84

law enforcement officers. See testimony of law enforcement

officers

lay. See lay witness

list of (for trial), 169

out-of-state, 119–120

persons of questionable mental stability, 83–84

refreshing recollection, 145–149

refusal to answer question, 126

requirements, 43

requirement to answer questions, 125–126

segregation of, 120

subpoena, 117–119

witness capacity, 81, 124

 witness disclosure, 410–411

witnesses for the defense, 169

witnesses for the prosecution, 169

witness immunity, 172

witness incapacity, 167

witness sequencing, 43–45

witness stand, 43

witness voir dire, 81

Woodward, Louise, 461

writing, 398

writings and recordings, 446. See also photographs, recordings, and

computer-generated evidence

written records, 217–218

X
Xerox copy, 448

X-ray photographs, 448, 464

Y
Yates, Sally Q., 362

youthful offenders, 17
Figure 1.1 Text Alternative (Chapter
1)
FIGURE 1–1 Overview of the criminal justice system.

Alt Text (Short Description)

A flow diagram depicts the criminal justice system.

Detailed description

The entry into the system shows the following: Crime reported to or discovered
by police points to investigation which is unsolved or not arrested followed by
arrest and booking which are released without prosecution and initial appearance
which is charge dropped or dismissed. The arrest, booking, and initial appearance
are categorized as out of the system. The investigation and arrest point to juvenile
offenses and the initial appearance points to petty offenses. The juvenile offenses
point to the police juvenile unit classified into a release or station adjustment,
nonpolice referrals, and intake hearing. The intake hearing is classified into
released, the petition to the court, and nonadjudicatory disposition. The
prosecution and pretrial procedures are as follows: The initial appearance points
to a preliminary hearing. The preliminary hearing points to bail or detention
followed by misdemeanors on one side and charges dropped or dismissed
followed by the system on the other side. Here, bail or detention points to
felonies. The felonies are classified into information and the grand jury. The
grand jury points to refusal to indict followed by out of the system.

The judicial procedures are as follows: The assignment is a charge dismissed out
of the system and classified as a reduction of charge, guilty plea, and trial. The
guilty plea points to trial followed by acquitted out of the system. The
arrangement points to the reduction of charge which further points to the guilty
plea. Here, Arraignment is a charge dismissed out of the system and classified
into a guilty plea and trial. The trial points to the acquitted out of the system. The
sentencing and corrections are as follows: The trial and guilty plea points to
sentencing which is classified into probation, appeal, and penitentiary. The
probation points to revocation followed by penitentiary and habeas corpus. The
penitentiary is classified into pardon and clemency, capital punishment, and
parole. The parole points to revocation which again points to the penitentiary. The
sentencing is classified into fine, probation, and jail. If the fine is non-paid then
jail. The probation is followed by revocation and jail out of the system. The
adjudicatory hearing is released out of the system and points to disposition
followed by probation and juvenile institution. The probation points to revocation
and parole. The revocation points to the juvenile institution which further points
to parole and revocation.

Return to Figure 1.1

Figure 1.3 Text Alternative (Chapter
1)
FIGURE 1–3 Flow of cases in the courts of North Carolina.

Alt Text (Short Description)

A flow diagram depicts the cases in the courts of North Carolina.

Detailed description
The classification listed under the supreme court are as follows: 1, Appeals of
rights which includes the constitutional questions, when dissent in the court
of appeals, utility commission in the general rate case, bar exam, and judicial
standards. 2, By certification at the supreme court's discretion which includes
before the court of appeals hearing and after the court of the appeals hearing.
The court of appeals lists the following: Utility commission, industrial
commission, north Carolina state bar, department of health and human
services, commissioner of banks, administrator of savings and loans, property
tax commission, commissioner of insurance, and secretary of environmental
and natural resources. All except first-degree murder convictions and guilty-
plea cases are classified under the supreme court. Appeals from
administrative agencies generally and all criminal cases for trial de novo are
classified under superior court. First-degree murder convictions with the
death penalty and all civil, juvenile, and involuntary commitment cases on
record are classified under district court magistrate. The district court
magistrate comes under the superior court which comes under the court of
appeals which comes under the supreme court.

Return to Figure 1.3

Figure 2.1 Text Alternative
(Chapter 2)
FIGURE 2–1 Sequence of events in a typical criminal trial.

Alt Text (Short Description)

A flow diagram depicts the sequence of events in a typical criminal trial.

Detailed description
The sequence is as follows: Final pretrial matters and motions, Jury
selection, Jury sworn, Opening statement by the prosecution, Defense
opening statement in reservation, Prosecution's case-in-chief, Defense
opening statement if reserved, Defense's case-in-chief, Rebuttal if any by
the prosecution, Surrebuttal if any by defense, Prosecution's opening
argument, Defense's final summation, Prosecution's final summation,
Instructions by the court to the jury, Jury deliberation, and Jury verdict.

Return to Figure 2.1

Figure 2.2 Text Alternative (Chapter
2)
FIGURE 2–2 Number of jurors in criminal cases by state.

Alt Text (Short Description)

A map depicts the number of jurors in criminal cases by state.

Detailed description

The following states are highlighted for 12 in all: AK, HI, WA, OR, CA, MT,
NM, SD, NE, KS, MN, IA, MO, AR, WI, IL, TN, AL, MI, WV, NY, PA, NC, SC,
VT, and ME. The following states are highlighted for 12 in Fel slash 6 in Mis: ID,
WY, CO, TX, OK, LA, MS, NH, and GA. The following states are highlighted
for other categories: NV, UT, AZ, ND, IN, OH, KY, VA, MA, and RI.
Return to Figure 2.2
Figure 2.3 Text Alternative (Chapter
2)
FIGURE 2–3 Spectrum of levels of proof.

Alt Text (Short Description)

An illustration depicts the spectrum of levels of proof.

Detailed description

An arrow in a diagonal direction with absolute certainty on the top-right and no

basis for knowledge on the bottom-left is depicted. The levels from bottom-left to
top-right are as follows: Mere hunch; Reasonable suspicion - stop, frisk, question;
Probable cause - arrest, search, file information, indict; Prima facie - take the case
to the jury; Preponderance - jury finding and civil trial decision; Clear and
convincing - non-suggestiveness of identification; Beyond a reasonable doubt -
criminal jury verdict.
Return to Figure 2.3
Figure 4.1 Text Alternative (Chapter
4)
FIGURE 4–1 States that allow child victims to testify via closed-circuit TV or
video recorded deposition.

Alt Text (Short Description)

A map depicts the child victims testifying via closed-circuit TV or video-recorded

deposition.

Detailed description
The following states are highlighted for closed circuits only: AK, WA, CA, HI,
SD, OK, IA, WI, IL, LA, MS, AL WV, VA, FL, NY, NJ, and MD. The following
states are highlighted for video-recorded depo only: ND, MO, and CT. The
following states are highlighted for CC or Video: MT, UT, AZ, NM, TX, KS, NE,
MN, AR, MI, IN, OH, KY, TN, ME, NH, VT, and MA. The following states are
highlighted for alternative methods: OR, ID, NV, WY, PA, NC, and GA.

Return to Figure 4.1

Figure 4.2 Text Alternative (Chapter
4)
FIGURE 4–2 Spousal incapacity rule.

Alt Text (Short Description)

A map depicts the spousal incapacity rules in US states.

Detailed description

The following states are highlighted for rule abolished: IA, IL, IN, NY, and VT.
The following states are highlighted for the witness spouse: OR, WY, NM, TX,
MI, OH, PA, WV, NC, GA, NJ, MA, and RI. The following states are highlighted
for the defendant or spouse: WA, MT, ID, CA, NV, UT, AZ, AK, CO, SD, NE,
KS, OK, MO, AR, LA, MS, AL, KY, WI, FL, SC, VA, ME, DE, and MD.

Return to Figure 4.2

Figure 4.3 Text Alternative (Chapter
4)
FIGURE 4–3 States that have adopted the accountant-client privilege.

Alt Text (Short Description)

A map depicts the states that adopted the accountant-client privilege.

Detailed description

The following states are highlighted for Yes: WA, OR, ID, WY, CA, NV, UT, CO,
AZ, NM, AK, HI, ND, SD, KS, OK, MN, IA, MO, AR, LA, WI, IL, MS, MI, IN,
KY, TN, AL, GA, SC, FL, PA, NJ, NH, VT, MA, RI, and CT. The following
states are highlighted for No: WY, NE, TX, OH, VA, NC, and NY.

Return to Figure 4.3

Figure 4.4 Text Alternative (Chapter
4)
Alt Text (Short Description)

A map depicts the states that adopted the news reporter source privilege.

Detailed description

The following states are highlighted for Yes: WA, OR, CA, NV, UT, CO, AZ,
NM, AK, HI, ND, SD, KS, OK, MN, AR, LA, WI, IL, MI, IN, KY, TN, AL, GA,
SC, FL, PA, NJ, VT, RI, and CT. The following states are highlighted for No:
WY, MS, VA, and MA. The following states are highlighted for the By case law:
ID, IA, MO, and NH.

Return to Figure 4.4

Figure 5.1 Text Alternative (Chapter
5)
FIGURE 5–1 Sample witness subpoena form–criminal.

Alt Text (Short Description)

A sample witness subpoena form of a criminal case.

Detailed description

The witness subpoena form contains the case number on the top left, and a box
includes the date, time, courtroom, address, and emergency number. On the right,
an emblem shows Erik Nasarenko, District Attorney County of Ventura, State of
California. A small box at the bottom denotes the special instructions to witness.

Return to Figure 5.1

Figure 7.1 Text Alternative (Chapter
7)
FIGURE 7–1 How to determine what is hearsay.

Alt Text (Short Description)

A flow diagram depicts the Hearsay rule.

Detailed description
The flow is as follows: Check whether the statement is yes or no, if no then not
Hearsay and admissible on hearsay grounds, if yes then check if it is made out of
court. If made out of court results in no, then not Hearsay and admissible on
hearsay grounds, if yes then check offered for the truth of the matter asserted. If
offered the truth of the matter asserted is no, then not Hearsay and admissible on
hearsay grounds, if yes then check for the witness's prior statements and
admissions. If the witness's prior statements and admissions are yes then not
Hearsay and admissible on hearsay grounds, if no it results in then it is Hearsay.

Return to Figure 7.1

Figure 7.2 Text Alternative (Chapter
7)
FIGURE 7–2 Two categories of exemptions from the hearsay rule.

Alt Text (Short Description)

A flow diagram depicts the exemptions from the Hearsay rule.

Detailed description

The flow is as follows: Check whether the states have to be true to be relevant (Is
it OTMA-offered for the truth of the matter asserted) if no then the statement is
not hearsay, it is admissible on hearsay grounds, if yes then is the statement one
previously made by a witness or by a party opponent. If yes then it results in the
statement may qualify as an exemption from the hearsay rule and be admissible
on hearsay grounds.
Return to Figure 7.2
Figure 8.1 Text Alternative (Chapter
8)
FIGURE 8–1 Constitutional rights of an accused.

Alt Text (Short Description)

A table depicts the stages of the criminal justice process and the defendant's
rights.

Detailed description

The stages of the criminal justice process and the defendant's rights are followed:
Pre-arrest, the defendant has no rights relating to confessions or admissions.
Arrest- the defendant has a due process right against coercion, plus Miranda
rights to silence and counsel during interrogation; Critical stage- the defendant
has a due process right against coercion, plus the Sixth Amendment right to
counsel.

Return to Figure 8.1

Figure 9.2 Text Alternative (Chapter
9)
FIGURE 9–2 States with special restrictions upon service of warrants at night.

Alt Text (Short Description)

A map depicts the states with special restrictions upon service of warrants at
night.

Detailed description

The following states are highlighted for YES: OR, CA, NV, ID, UT, AZ, NM,
ND, SD, NE, KS, OK, IA, MN, AK, HI, OH, PA, NY, VT, NH, ME, VA, AL,
GA, and FL. The following states are highlighted for NO: WA, MT, WY, CO, TX,
WI, IL, MO, MI, IN, KY, TN, MS, WV, NC, SC, CT, and MD.
Return to Figure 9.2
Figure 11.1 Text Alternative (Chapter
11)
FIGURE 11–1 States that give circumstantial reasonable doubt instruction.

Alt Text (Short Description)

A map depicts the states giving circumstantial reasonable doubt instruction.

Detailed description

The following states are highlighted for don't require special instruction: WA,
OR, NV, ID, MT, AZ, AK, HI, WY, CO, ND, SD, NE, KS, TX, MN, IA, MO,
AR, IL, OH, KY, PA, ME, VT, NC, AL, and FL. The following states are
highlighted for requiring restriction if all evidence is circumstantial: CA, OK,
MS, MI, IN, NY, NH, and MA. The following states are highlighted for
requirement if some circumstantial: NM, LA, TN, GA, SC, and WI.

Return to Figure 11.1

Figure 11.2 Text Alternative (Chapter
11)
FIGURE 11–2 Basic fingerprint patterns.

Alt Text (Short Description)

Four types of basic fingerprint patterns are displayed.

Detailed description

The basic fingerprint patterns are plain whorl, central pocket loop, double loop,
and accidental.

Return to Figure 11.2

Table of Contents
1. Table of Contents and Preface
1. Cover Page
2. Title Page
1. Norman M. Garland
3. Copyright Page
4. Dedication Page
5. About the Author
6. Brief Contents
7. Contents
8. Preface
1. Acknowledgments
2. Changes Made for the Ninth Edition
3. Connect
4. Proctorio
5. ReadAnywhere®
6. Test Builder in Connect
7. Writing Assignment
8. Application-Based Activities in Connect
9. Create
9. Connect
1. Instructors The Power of Connections
2. Students Get Learning that Fits You
2. Chapter 1: Introduction to the Law of Evidence and the Pretrial
Process
1. Chapter 1 Introduction
2. Introduction to the Rules of Evidence: Definition of Evidence
3. The Rules of Evidence
1. History of Trial by Jury
4. Introduction to the Law of Evidence and the Pretrial Process
1. Development of the Rules of Evidence
5. Overview of the Court Process: The Pretrial Process
6. Participants in the Criminal Justice System
1. Law Enforcement Personnel
 2. Prosecution and Defense
3. Courts
4. Correctional Institutions and Agencies
7. The Pretrial Court Process
1. Arrest
2. Bail
3. Plea Bargaining
4. Charging the Crime
5. Arraignment and Plea
6. Pretrial Motions
7. Pretrial Issues for the Law Enforcement Professional
8. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Workplace Applications
5. Endnotes
3. Chapter 2: The Trial Process
1. Chapter 2 Introduction
2. Introduction
3. Jury or Court Trial
1. Instructions by the Court to the Jury
4. The Jury
1. Qualifications of Jurors
2. Jury Selection, or Voir Dire
3. Function of the Jury
4. Jury Nullification
5. The Judge
6. Prosecuting Attorney’s Responsibility and the Burden of Proof
Beyond a Reasonable Doubt
7. Role of the Defense Attorney
8. Opening Statement
9. Making The Record
10. The Prosecution’s Case-in-Chief
11. Witness Requirements
12. Examination of Witnesses
1. Sequence of Witnesses
 2. Direct Examination
3. Objections
4. Cross-Examination
5. Redirect Examination
6. Re-Cross- and Subsequent Examinations
7. Close of Prosecution’s Case-in-Chief
13. Defense Presentation
14. Prosecution’s Rebuttal
15. Defense’s Surrebuttal
16. Closing Arguments
17. Instructions, or Charge, to the Jury
18. Deliberation and Verdict
19. Sentencing the Defendant
20. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Thinking Critically About Evidence
5. Workplace Applications
6. Ethical Dilemmas
7. Endnotes
4. Chapter 3: Evidence—Basic Concepts
1. Chapter 3 Introduction
2. Describing Evidence
1. Relevant Evidence
2. Balancing the Potential for Unfair Prejudice, Remoteness,
and the Like
3. Material Evidence
4. Competent (or Incompetent) Evidence
5. Prima Facie Evidence
6. Contradictory and Corroborative Evidence
3. Judicial Notice
1. Notice of Public Statutes
2. Notice of Geographical Facts
3. Notice of Words, Phrases, and Abbreviations
4. Notice of Time, Days, and Dates
5. Scientific and Medical Facts
 4. Presumptions
1. Inferences and “Conclusive” Presumptions Distinguished
2. The Policy Behind Presumptions
3. The Effects of Presumptions: Jury Instructions and Burden
of Proof
4. Distinguishing Mandatory from Permissive Presumptions:
Presumptions in Criminal Cases
5. Some Common Rebuttable Presumptions and Their Status
Under the Law
6. Knowledge of the Law
7. Presumptions, Not Evidence
5. Burden of Proof
6. Stipulations
7. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Thinking Critically about Evidence
5. Workplace Applications
6. Endnotes
5. Chapter 4: Witnesses—Competency and Privileged Communications
1. Chapter 4 Introduction
2. Introduction
3. Who Is a Competent Witness?
1. Children as Witnesses
2. Persons of Questionable Mental Stability
3. Judges and Jurors as Witnesses
4. Privileged Communications
1. Introduction
2. General Principles
3. Competency Versus Privileged Relationships
5. Husband and Wife Relationship
1. Spousal Incapacity or Disqualification
2. Marital Communications Privilege
3. Information Gained Before Marriage
4. Crime or Fraud Exception
 5. Communication Between Husband and Wife Heard by Third
Persons
6. Parent-Child Privilege
7. Attorney-Client Privilege
1. When Is the Privilege Created?
2. Communications Made in the Presence of a Third Person
3. The Communication Between Attorney and Client
4. Crimes Exception to Attorney-Client Privilege
5. Waiver of the Privilege
8. Physician-Patient and Psychotherapist-Patient Privileges
1. Physician-Patient Privilege
2. Psychotherapist-Patient Privilege
3. Exceptions to Privilege
9. Clergy-Communicant Privilege
10. Identity of Informer Privilege
11. Accountant-Client Privilege
12. News Reporter–News Source Privilege
13. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Thinking Critically About Evidence
5. Workplace Applications
6. Ethical Dilemma
7. Endnotes
6. Chapter 5: Witnesses—Lay and Expert
1. Chapter 5 Introduction
2. Becoming a Witness
1. Attendance of Witnesses
2. Method of Subpoenaing Witnesses
3. Out-of-State Witnesses
4. Segregation of Witnesses, or the Rule on Witnesses
3. Lay, or Ordinary, Witnesses
1. Methods of Interrogating Witnesses
2. Opinion Testimony of Lay Witnesses
3. Terminology of Lay Witnesses
4. Expert Witnesses
 1. Definition of an Expert Witness
2. The Foundation for Expert Testimony
3. Qualifying the Expert: Voir Dire
4. Testimony of the Expert Witness
5. Kinds of Expert Witnesses
5. Refreshing Recollection
1. Past Recollection Recorded
2. Investigative Report as a Means of Refreshing Recollection
and Past Recollection Recorded
3. Laying the Foundation for Past Recollection Recorded
6. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Workplace Applications
5. Ethical Dilemma
6. Endnotes
7. Chapter 6: Credibility and Impeachment
1. Chapter 6 Introduction
2. Credibility
3. Basic Methods of Impeachment
4. Bad Character for Truthfulness
1. Evidence of Conviction of Certain Crimes
2. Misconduct Not Resulting in a Conviction
3. Opinion and Reputation Evidence Relating to Truthfulness
5. Contradiction
6. Prior Inconsistent Statements
7. Bias or Motive to Falsify
8. Witness Incapacity
9. Impeachment: Other Issues
1. Self-Impeachment
2. Lack of Religious Belief
3. Rehabilitation of Impeached Witness
4. Reasons for Impeaching One’s Own Witness
10. Self-Incrimination
1. Claiming the Privilege Against Self-Incrimination
2. Waiver of Privilege Against Self-Incrimination
 3. Witness’s Immunity Against Prosecution: Procedure in
Granting Immunity
4. Defendant’s Privilege Against Self-Incrimination
5. What Is Not Self-Incrimination
11. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Thinking Critically About Evidence
5. Workplace Applications
6. Ethical Dilemmas
7. Endnotes
8. Chapter 7: The Hearsay Rule
1. Chapter 7 Introduction
2. Introduction
3. Rationale for the Rule and Constitutional Considerations
4. Components of the Hearsay Rule
1. The Definition of a Statement
2. Offered for the Truth of the Matter Asserted or Not?
3. Exceptions to and Exemptions from the Hearsay Rule
5. Statements That Are Not Hearsay Because They Are Not Offered
for the Truth of the Matter Asserted
1. Operative Legal Fact
2. State of Mind of the Hearer
3. State of Mind of the Declarant
4. State of Mind (Knowledge) of the Declarant on the “Traces
of the Mind” Theory
5. Statements That Are Otherwise Not Offered for the Truth of
the Matter Asserted but to Prove Something Else
6. Hearsay Exemptions
1. Prior Statements by Witnesses
2. Opposing Parties’ Statements (Admissions)
7. Specific Hearsay Exceptions
8. Statements Made Under Sense of Impending Death (Dying
Declarations)
1. Foundation for the Modern Exception
2. Unavailability of the Declarant
 3. Declarant’s Belief in Impending Death
4. Dying Declarations Must Relate to the Cause of Death
5. Form of the Dying Declaration
6. Who May Use Dying Declarations
7. Weight to Be Given to Dying Declarations
9. Declarations Against Interest
1. The Rationale for the Exception
2. Unavailability of the Declarant
3. Requirements for Admissibility: What Is Against Interest?
10. Spontaneous Utterances: Present Sense Impressions and Excited
Utterances (A.K.A. Res Gestae)
1. Spontaneous Utterances Defined: Present Sense Impressions
and Excited Utterances
2. Foundation and Rationale for the Exceptions
3. The Time Element
4. Utterance Must Relate to the Event Just Preceding It
5. Availability of the Declarant as a Witness
11. State of Mind
1. State of Mind Declarations Defined
2. Foundation and Rationale for the Exception
3. Inferring Declarant’s and Second Party’s Subsequent
Conduct
4. Availability of the Declarant as a Witness
5. Foundation and Rationale for the Statements for Purposes of
Medical Diagnosis or Treatment Exception
6. Who Can Make the Statement
7. To Whom the Statement Can Be Made
8. Statements of Cause of Condition or Pain
12. Former Testimony
1. Foundation and Rationale for the Exception
2. Opportunity to Have Effective Cross-Examination
13. Business and Public Records
1. Business Records—Description and Foundation
2. Public Records—Description and Foundation
3. Law Enforcement Reports May Not Be Admissible in
Criminal Cases
4. Proof of Absence of Business or Public Records Entry
 14. Pedigree or Family History
1. Written Records
2. Reputation to Prove Family History
15. Past Recollection Recorded: Only Read into the Record
16. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Thinking Critically About Evidence
5. Workplace Applications
6. Ethical Dilemma
7. Endnotes
9. Chapter 8: Opposing Party’ Statements (Admissions) and Confessions
1. Chapter 8 Introduction
2. Introduction—Opposing Party’s Statements (Admissions) and
Confessions Generally
3. Opposing Party’s Statements (Admissions)
1. Acts as Opposing Party’s Statements (Admissions)
2. Opposing Party’s Statement (Admission) by Silence in
Response to Accusatory Statements
3. Statements by an Accused While in Police Custody
4. Confessions—general Principles and Considerations
1. Development of the Free and Voluntary Rule
2. Development of Additional Requirements
5. Confessions Excluded Due to Violation of Due Process of Law:
Coerced Confessions
1. Confessions Coerced by Physical Force
2. Confessions Coerced by Psychological Pressure
6. Exclusion of Confessions Due to Violation of Rights Secured
Under Miranda v. Arizona
1. What Constitutes Custody for Purposes of Miranda
2. What Constitutes Interrogation for Purposes of Miranda
3. What Constitutes a Valid Waiver of Miranda Rights
4. What Constitutes a Valid Waiver After a Suspect Asserts His
or Her Rights
5. Exceptions to the Miranda Rule
 6. Miranda, the Exclusionary Rule, and the Fruit of the
Poisonous Tree Doctrine
7. Exclusion of Confessions Due to Violation of the Sixth
Amendment Right to Counsel
1. When the Right to Counsel Rule Applies
2. What Constitutes Deliberate Elicitation Versus Interrogation
3. When and How an Officer Can Communicate with an
Accused After the Right Attaches
4. How an Accused Can Waive the Right to Counsel
8. Confession Given After an Unlawful Search and Seizure May Be
Excluded
9. The Continued Importance of Confessions as Evidence
10. Procedure for Introduction of Confessions
11. Wording of Confessions
12. Confession Implicating a Codefendant
13. Proof of the Crime in Addition to a Confession—the Requirement
of Corpus Delicti
14. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Workplace Applications
5. Ethical Dilemmas
6. Endnotes
10. Chapter 9: The Exclusionary Rule—Search and Seizure
1. Chapter 9 Introduction
2. Introduction: What Is the Exclusionary Rule?
1. Development of the Exclusionary Rule and Its Exceptions
2. Philosophy of the Exclusionary Rule
3. The Scope of Searches and Seizures
4. What Is a Search?
1. The Reasonable Expectation of Privacy Test
2. The False Friend
3. Open Fields Doctrine and Curtilage
4. Technologically Enhanced Activities
5. Aerial Surveillance
6. Miscellaneous Matters Pertaining to Defining a Search
 5. What Is a Seizure?
6. Ways of Making a Reasonable Search and Seizure
7. Search Pursuant to a Search Warrant
1. Definition of a Search Warrant
2. Grounds for Issuing a Search Warrant
3. Procedure to Obtain a Search Warrant
4. Particularity of Description of Property to Be Searched or
Seized
5. Discovery of Other Property—the Plain View Doctrine
6. Night Service of a Warrant
7. “No-Knock” Warrants
8. Who May Serve a Warrant
9. Knock and Announce and the Use of Force in Execution of a
Warrant
10. Time Limit on Length of Search
11. Time Limit on Execution of Warrant: The Staleness Doctrine
12. Return of the Search Warrant
13. Attack on the Search Warrant
8. Reasonable Searches Without Warrant: Exceptions to the Warrant
Requirement
1. Search and Seizure Incident to a Lawful Arrest
2. The Vehicle Exception
3. Inventory Searches
4. Consent Searches
5. Exigent Circumstances Searches and Seizures
6. Plain View Doctrine
9. Search and Seizure on Less Than Probable Cause: Stop and Frisk
andReasonable Suspicion in Other Circumstances
1. The Permissible Scope of Stops
2. Extension of Frisks to Vehicles and Homes
10. Suspicionless Stops and Searches: The Special Needs Exception
to the Probable Cause and Warrant Requirements
11. Objecting to the Introduction of Evidence Claimed to Be Illegally
Seized
1. Standing
2. Motion to Suppress Evidence
12. Review and Application
 1. Summary
2. Key Terms
3. Questions for Review
4. Workplace Applications
5. Ethical Dilemma
6. Endnotes
11. Chapter 10: Exclusionary Rule—Identification Procedures
1. Chapter 10 Introduction
2. Identification Procedures and the Exclusionary Rule
3. Identification Procedures and the Right to Counsel
1. The Critical Stage Test for the Right to Counsel
2. When Counsel Need Not Be Present
4. Identification Procedures and Due Process
1. Effect of Illegal Pretrial Identification on In-Court
Identification
2. Only Unnecessarily Suggestive Pretrial Identifications Are
Illegal
5. Types of Suggestive Identification Procedures
1. Size of the Lineup or Array
2. Collaboration Between Witnesses
3. Police Instructions or Statements to Witnesses
4. Composition of the Lineup or Photo Array
5. Different Appearance of the Accused
6. Other Suggestive Procedures Pertaining Solely to Photo
Arrays
6. Determining the Reliability of a Suggestive Identification: The
Five Factors of the Biggers Case
1. Witness’s Opportunity to View the Criminal at the Time of
the Crime
2. Witness’s Degree of Attention
3. Accuracy of the Description
4. Level of Certainty Demonstrated by the Witness at the
Confrontation
5. Length of Time Between the Crime and the Confrontation
7. Review and Application
1. Summary
2. Key Terms
 3. Questions for Review
4. Thinking Critically About Evidence
5. Workplace Applications
6. Ethical Dilemma
7. Endnotes
12. Chapter 11: Circumstantial Evidence
1. Chapter 11 Introduction
2. Direct Evidence Versus Circumstantial Evidence
1. Direct Evidence Defined
2. Circumstantial Evidence Defined
3. Why Use Circumstantial Evidence?
4. Relevance of Circumstantial Evidence
5. Different Functions of Circumstantial Evidence
3. Admissibility of Other Crimes, Acts, or Wrongs
1. Other Crimes to Prove Motive or Intent
2. Other Crimes to Prove Plan (or Design)
3. Other Crimes to Prove Lack of Mistake or Accident: The
Doctrine of Chances
4. Other Crimes or Misconduct to Prove Identity
4. Means or Capability to Commit a Crime
5. Consciousness of Guilt
6. Character of the Defendant
1. Proving the Defendant’s Good Character
2. Prosecution’s Proof of Defendant’s Bad Character
3. Amount of Proof to Show Good or Bad Character
4. Proof of Prior Sexual Misconduct
7. Character of Victims
1. Homicide Victim
2. Victim in Sex Offense Cases
3. State of Mind of Homicide Victim When Defendant Claims
Self-Defense or Accident
8. Character of Witness
1. The Accused as Witness
9. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
 4. Thinking Critically About Evidence
5. Workplace Application
6. Ethical Dilemma
7. Endnotes
13. Chapter 12: Documentary Evidence and the Right of Discovery
1. Chapter 12 Introduction
2. Documents as a Kind of Evidence
3. Authentication
4. Best Evidence Rule
1. Primary Versus Secondary Evidence
2. Lost or Destroyed Writings, Recordings, or Photographs
3. Document in Possession of Adverse Party
4. Collateral Matter
5. Document in Custody of Public Officer
6. Original Documents Too Voluminous to Examine
7. What Is an Original Document?
8. Inscribed Chattel
5. The Right of Discovery in Criminal Cases
6. Discovery Through Preliminary Hearing
7. Growth of the Right of Discovery
8. Pretrial Discovery
1. Matters That May Be Examined
2. Defendant’s Right to Information About Prospective
Witnesses
3. Defendant’s Right to Identity of Informers
4. Procedure for Pretrial Discovery by Defendant
9. Prosecution’s Right of Discovery
10. Defendant’s Right to Original Investigative Notes and Recordings
11. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Thinking Critically About Evidence
5. Workplace Applications
6. Ethical Dilemma
7. Endnotes
14. Chapter 13: Physical Evidence
 1. Chapter 13 Introduction
2. What Is Physical Evidence?
1. Physical Evidence Must Be Relevant
2. Laying Foundation for Physical Evidence
3. Introducing Physical Evidence
4. Attacking Physical Evidence
3. Sources of Physical Evidence
1. Kinds of Physical Evidence
2. Chain of Custody
3. Securing the Crime Scene and Collecting Physical Evidence
4. Connecting Objects with Issues at Trial: Chain of Custody, or
Possession
1. Identification by Custody and Control
2. Identification by Proof of Chain of Custody
5. Marking Objects for Identification
6. Storage of Physical Evidence
7. Delivering Physical Evidence
8. Preparation of Physical Evidence for Use in Court
9. Gruesome Objects
1. Photographs of the Crime Scene or Corpses
2. Videos of the Crime Scene or Corpses
10. Physical Objects Not Produced in Court
11. Viewing of the Crime Scene by the Jury
12. Application Case
13. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Thinking Critically About Evidence
5. Workplace Application
6. Ethical Dilemma
7. Endnotes
15. Chapter 14: Photographic, Recorded, and Computer-Generated
Evidence
1. Chapter 14 Introduction
2. Photographs, Recordings, and the Like as Evidence
1. Prints Versus Projected Images
 2. Videos
3. Photocopy, X-Ray, and Computer-Generated Output
4. The Rise of Technology
3. First Rule of Admissibility—Foundation for Relevance
1. Gruesome Photographs and Videos
2. Nude Photographs
4. Second Rule of Admissibility—Foundation for Authentication
1. Accuracy Is Required
2. Proof of Accuracy
3. Photographer Not Necessary to Verify Accuracy
4. Photographer Need Not Be an Expert
5. Foundation by Chain of Custody, or Possession
6. Foundation by Distinctive Characteristic
7. What Should Be Used for Identification Purposes
8. Where the Object Should Be Placed
9. What Data Should Be Included on the Identification Card
10. Placement of Measurement Devices in the Scene
5. Posed Photographs and Video Recordings
6. Methods of Presentation in the Courtroom
1. Photographic Prints as Evidence
2. Demonstrative Diagrams, Charts, and Boards
3. Projected Images
7. Consideration of Other Matters
1. How Many Photographs Should Be Taken
2. Preparing Photographs, Videos, and Computer Output for
Trial Use
3. Photographic, Video, Software, and Equipment to Be Used
8. X-Ray Photographs
9. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
4. Thinking Critically About Evidence
5. Workplace Applications
6. Endnotes
16. Chapter 15: How to Testify Effectively
1. Chapter 15 Introduction
 2. The Law Enforcement Professional’s Role
3. Problems of the New Professional: Notification to Appear
4. What to Do Before the Trial
5. What to Wear in Court
6. Where to Appear and What to Do
7. Conduct Before and During the Court Session
1. Conferring with the Prosecuting Attorney
2. Being Called to the Stand
8. On the Witness Stand
1. Voice and Grammar
2. Profanity and Vulgarity
3. Jargon
4. References to the Accused
5. Answering Questions on the Stand
6. When the Witness Forgets Testimony
7. Cross-Examination
9. After Testifying
10. Review Case After Verdict
11. Review and Application
1. Summary
2. Key Terms
3. Questions for Review
17. Glossary
1. Glossary
18. Case Index
1. Case index
1. A
2. B
3. C
4. D
5. E
6. F
7. G
8. H
9. I
10. J
11. K
 12. L
13. M
14. N
15. O
16. P
17. R
18. S
19. T
20. U
21. V
22. W
23. Y
19. Subject Index
1. Subject Index
1. A
2. B
3. C
4. D
5. E
6. F
7. G
8. H
9. I
10. J
11. K
12. L
13. M
14. N
15. O
16. P
17. Q
18. R
19. S
20. T
21. U
22. V
23. W
 24. X
25. Y
20. Accessibility Content: Text Alternatives for Images
1. Figure 1.1 Text Alternative (Chapter 1)
2. Figure 1.3 Text Alternative (Chapter 1)
3. Figure 2.1 Text Alternative (Chapter 2)
4. Figure 2.2 Text Alternative (Chapter 2)
5. Figure 2.3 Text Alternative (Chapter 2)
6. Figure 4.1 Text Alternative (Chapter 4)
7. Figure 4.2 Text Alternative (Chapter 4)
8. Figure 4.3 Text Alternative (Chapter 4)
9. Figure 4.4 Text Alternative (Chapter 4)
10. Figure 5.1 Text Alternative (Chapter 5)
11. Figure 7.1 Text Alternative (Chapter 7)
12. Figure 7.2 Text Alternative (Chapter 7)
13. Figure 8.1 Text Alternative (Chapter 8)
14. Figure 9.2 Text Alternative (Chapter 9)
15. Figure 11.1 Text Alternative (Chapter 11)
16. Figure 11.2 Text Alternative (Chapter 11)

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Guide
1. Table of Contents and Preface
2. Cover Page
3. Title Page
4. Norman M. Garland
5. Copyright Page
6. Dedication Page
7. About the Author
8. Brief Contents
 9. Contents
10. Preface
11. Acknowledgments
12. Changes Made for the Ninth Edition
13. Connect
14. Proctorio
15. ReadAnywhere®
16. Test Builder in Connect
17. Writing Assignment
18. Application-Based Activities in Connect
19. Create
20. Connect
21. Instructors The Power of Connections
22. Students Get Learning that Fits You
23. Chapter 1: Introduction to the Law of Evidence and the Pretrial
Process
24. Chapter 1 Introduction
25. Introduction to the Rules of Evidence: Definition of Evidence
26. The Rules of Evidence
27. History of Trial by Jury
28. Introduction to the Law of Evidence and the Pretrial Process
29. Development of the Rules of Evidence
30. Overview of the Court Process: The Pretrial Process
31. Participants in the Criminal Justice System
32. Law Enforcement Personnel
33. Prosecution and Defense
34. Courts
35. Correctional Institutions and Agencies
36. The Pretrial Court Process
37. Arrest
38. Bail
39. Plea Bargaining
40. Charging the Crime
41. Arraignment and Plea
42. Pretrial Motions
43. Pretrial Issues for the Law Enforcement Professional
44. Review and Application
45. Summary
46. Key Terms
47. Questions for Review
48. Workplace Applications
49. Endnotes
50. Chapter 2: The Trial Process
51. Chapter 2 Introduction
52. Introduction
53. Jury or Court Trial
54. Instructions by the Court to the Jury
55. The Jury
56. Qualifications of Jurors
57. Jury Selection, or Voir Dire
58. Function of the Jury
59. Jury Nullification
60. The Judge
61. Prosecuting Attorney’s Responsibility and the Burden of Proof Beyond
a Reasonable Doubt
62. Role of the Defense Attorney
63. Opening Statement
64. Making The Record
65. The Prosecution’s Case-in-Chief
66. Witness Requirements
67. Examination of Witnesses
68. Sequence of Witnesses
69. Direct Examination
70. Objections
71. Cross-Examination
72. Redirect Examination
73. Re-Cross- and Subsequent Examinations
74. Close of Prosecution’s Case-in-Chief
75. Defense Presentation
76. Prosecution’s Rebuttal
77. Defense’s Surrebuttal
78. Closing Arguments
79. Instructions, or Charge, to the Jury
80. Deliberation and Verdict
 81. Sentencing the Defendant
82. Review and Application
83. Summary
84. Key Terms
85. Questions for Review
86. Thinking Critically About Evidence
87. Workplace Applications
88. Ethical Dilemmas
89. Endnotes
90. Chapter 3: Evidence—Basic Concepts
91. Chapter 3 Introduction
92. Describing Evidence
93. Relevant Evidence
94. Balancing the Potential for Unfair Prejudice, Remoteness, and the Like
95. Material Evidence
96. Competent (or Incompetent) Evidence
97. Prima Facie Evidence
98. Contradictory and Corroborative Evidence
99. Judicial Notice
100. Notice of Public Statutes
101. Notice of Geographical Facts
102. Notice of Words, Phrases, and Abbreviations
103. Notice of Time, Days, and Dates
104. Scientific and Medical Facts
105. Presumptions
106. Inferences and “Conclusive” Presumptions Distinguished
107. The Policy Behind Presumptions
108. The Effects of Presumptions: Jury Instructions and Burden of Proof
109. Distinguishing Mandatory from Permissive Presumptions:
Presumptions in Criminal Cases
110. Some Common Rebuttable Presumptions and Their Status Under the
Law
111. Knowledge of the Law
112. Presumptions, Not Evidence
113. Burden of Proof
114. Stipulations
115. Review and Application
116. Summary
117. Key Terms
118. Questions for Review
119. Thinking Critically about Evidence
120. Workplace Applications
121. Endnotes
122. Chapter 4: Witnesses—Competency and Privileged Communications
123. Chapter 4 Introduction
124. Introduction
125. Who Is a Competent Witness?
126. Children as Witnesses
127. Persons of Questionable Mental Stability
128. Judges and Jurors as Witnesses
129. Privileged Communications
130. Introduction
131. General Principles
132. Competency Versus Privileged Relationships
133. Husband and Wife Relationship
134. Spousal Incapacity or Disqualification
135. Marital Communications Privilege
136. Information Gained Before Marriage
137. Crime or Fraud Exception
138. Communication Between Husband and Wife Heard by Third Persons
139. Parent-Child Privilege
140. Attorney-Client Privilege
141. When Is the Privilege Created?
142. Communications Made in the Presence of a Third Person
143. The Communication Between Attorney and Client
144. Crimes Exception to Attorney-Client Privilege
145. Waiver of the Privilege
146. Physician-Patient and Psychotherapist-Patient Privileges
147. Physician-Patient Privilege
148. Psychotherapist-Patient Privilege
149. Exceptions to Privilege
150. Clergy-Communicant Privilege
151. Identity of Informer Privilege
152. Accountant-Client Privilege
153. News Reporter–News Source Privilege
154. Review and Application
155. Summary
156. Key Terms
157. Questions for Review
158. Thinking Critically About Evidence
159. Workplace Applications
160. Ethical Dilemma
161. Endnotes
162. Chapter 5: Witnesses—Lay and Expert
163. Chapter 5 Introduction
164. Becoming a Witness
165. Attendance of Witnesses
166. Method of Subpoenaing Witnesses
167. Out-of-State Witnesses
168. Segregation of Witnesses, or the Rule on Witnesses
169. Lay, or Ordinary, Witnesses
170. Methods of Interrogating Witnesses
171. Opinion Testimony of Lay Witnesses
172. Terminology of Lay Witnesses
173. Expert Witnesses
174. Definition of an Expert Witness
175. The Foundation for Expert Testimony
176. Qualifying the Expert: Voir Dire
177. Testimony of the Expert Witness
178. Kinds of Expert Witnesses
179. Refreshing Recollection
180. Past Recollection Recorded
181. Investigative Report as a Means of Refreshing Recollection and Past
Recollection Recorded
182. Laying the Foundation for Past Recollection Recorded
183. Review and Application
184. Summary
185. Key Terms
186. Questions for Review
187. Workplace Applications
188. Ethical Dilemma
189. Endnotes
190. Chapter 6: Credibility and Impeachment
191. Chapter 6 Introduction
192. Credibility
193. Basic Methods of Impeachment
194. Bad Character for Truthfulness
195. Evidence of Conviction of Certain Crimes
196. Misconduct Not Resulting in a Conviction
197. Opinion and Reputation Evidence Relating to Truthfulness
198. Contradiction
199. Prior Inconsistent Statements
200. Bias or Motive to Falsify
201. Witness Incapacity
202. Impeachment: Other Issues
203. Self-Impeachment
204. Lack of Religious Belief
205. Rehabilitation of Impeached Witness
206. Reasons for Impeaching One’s Own Witness
207. Self-Incrimination
208. Claiming the Privilege Against Self-Incrimination
209. Waiver of Privilege Against Self-Incrimination
210. Witness’s Immunity Against Prosecution: Procedure in Granting
Immunity
211. Defendant’s Privilege Against Self-Incrimination
212. What Is Not Self-Incrimination
213. Review and Application
214. Summary
215. Key Terms
216. Questions for Review
217. Thinking Critically About Evidence
218. Workplace Applications
219. Ethical Dilemmas
220. Endnotes
221. Chapter 7: The Hearsay Rule
222. Chapter 7 Introduction
223. Introduction
224. Rationale for the Rule and Constitutional Considerations
225. Components of the Hearsay Rule
226. The Definition of a Statement
227. Offered for the Truth of the Matter Asserted or Not?
228. Exceptions to and Exemptions from the Hearsay Rule
229. Statements That Are Not Hearsay Because They Are Not Offered for
the Truth of the Matter Asserted
230. Operative Legal Fact
231. State of Mind of the Hearer
232. State of Mind of the Declarant
233. State of Mind (Knowledge) of the Declarant on the “Traces of the
Mind” Theory
234. Statements That Are Otherwise Not Offered for the Truth of the Matter
Asserted but to Prove Something Else
235. Hearsay Exemptions
236. Prior Statements by Witnesses
237. Opposing Parties’ Statements (Admissions)
238. Specific Hearsay Exceptions
239. Statements Made Under Sense of Impending Death (Dying
Declarations)
240. Foundation for the Modern Exception
241. Unavailability of the Declarant
242. Declarant’s Belief in Impending Death
243. Dying Declarations Must Relate to the Cause of Death
244. Form of the Dying Declaration
245. Who May Use Dying Declarations
246. Weight to Be Given to Dying Declarations
247. Declarations Against Interest
248. The Rationale for the Exception
249. Unavailability of the Declarant
250. Requirements for Admissibility: What Is Against Interest?
251. Spontaneous Utterances: Present Sense Impressions and Excited
Utterances (A.K.A. Res Gestae)
252. Spontaneous Utterances Defined: Present Sense Impressions and
Excited Utterances
253. Foundation and Rationale for the Exceptions
254. The Time Element
255. Utterance Must Relate to the Event Just Preceding It
256. Availability of the Declarant as a Witness
257. State of Mind
258. State of Mind Declarations Defined
259. Foundation and Rationale for the Exception
260. Inferring Declarant’s and Second Party’s Subsequent Conduct
261. Availability of the Declarant as a Witness
262. Foundation and Rationale for the Statements for Purposes of Medical
Diagnosis or Treatment Exception
263. Who Can Make the Statement
264. To Whom the Statement Can Be Made
265. Statements of Cause of Condition or Pain
266. Former Testimony
267. Foundation and Rationale for the Exception
268. Opportunity to Have Effective Cross-Examination
269. Business and Public Records
270. Business Records—Description and Foundation
271. Public Records—Description and Foundation
272. Law Enforcement Reports May Not Be Admissible in Criminal Cases
273. Proof of Absence of Business or Public Records Entry
274. Pedigree or Family History
275. Written Records
276. Reputation to Prove Family History
277. Past Recollection Recorded: Only Read into the Record
278. Review and Application
279. Summary
280. Key Terms
281. Questions for Review
282. Thinking Critically About Evidence
283. Workplace Applications
284. Ethical Dilemma
285. Endnotes
286. Chapter 8: Opposing Party’ Statements (Admissions) and Confessions
287. Chapter 8 Introduction
288. Introduction—Opposing Party’s Statements (Admissions) and
Confessions Generally
289. Opposing Party’s Statements (Admissions)
290. Acts as Opposing Party’s Statements (Admissions)
291. Opposing Party’s Statement (Admission) by Silence in Response to
Accusatory Statements
292. Statements by an Accused While in Police Custody
293. Confessions—general Principles and Considerations
294. Development of the Free and Voluntary Rule
295. Development of Additional Requirements
296. Confessions Excluded Due to Violation of Due Process of Law:
Coerced Confessions
297. Confessions Coerced by Physical Force
298. Confessions Coerced by Psychological Pressure
299. Exclusion of Confessions Due to Violation of Rights Secured Under
Miranda v. Arizona
300. What Constitutes Custody for Purposes of Miranda
301. What Constitutes Interrogation for Purposes of Miranda
302. What Constitutes a Valid Waiver of Miranda Rights
303. What Constitutes a Valid Waiver After a Suspect Asserts His or Her
Rights
304. Exceptions to the Miranda Rule
305. Miranda, the Exclusionary Rule, and the Fruit of the Poisonous Tree
Doctrine
306. Exclusion of Confessions Due to Violation of the Sixth Amendment
Right to Counsel
307. When the Right to Counsel Rule Applies
308. What Constitutes Deliberate Elicitation Versus Interrogation
309. When and How an Officer Can Communicate with an Accused After
the Right Attaches
310. How an Accused Can Waive the Right to Counsel
311. Confession Given After an Unlawful Search and Seizure May Be
Excluded
312. The Continued Importance of Confessions as Evidence
313. Procedure for Introduction of Confessions
314. Wording of Confessions
315. Confession Implicating a Codefendant
316. Proof of the Crime in Addition to a Confession—the Requirement of
Corpus Delicti
317. Review and Application
318. Summary
319. Key Terms
320. Questions for Review
321. Workplace Applications
322. Ethical Dilemmas
323. Endnotes
324. Chapter 9: The Exclusionary Rule—Search and Seizure
325. Chapter 9 Introduction
326. Introduction: What Is the Exclusionary Rule?
327. Development of the Exclusionary Rule and Its Exceptions
328. Philosophy of the Exclusionary Rule
329. The Scope of Searches and Seizures
330. What Is a Search?
331. The Reasonable Expectation of Privacy Test
332. The False Friend
333. Open Fields Doctrine and Curtilage
334. Technologically Enhanced Activities
335. Aerial Surveillance
336. Miscellaneous Matters Pertaining to Defining a Search
337. What Is a Seizure?
338. Ways of Making a Reasonable Search and Seizure
339. Search Pursuant to a Search Warrant
340. Definition of a Search Warrant
341. Grounds for Issuing a Search Warrant
342. Procedure to Obtain a Search Warrant
343. Particularity of Description of Property to Be Searched or Seized
344. Discovery of Other Property—the Plain View Doctrine
345. Night Service of a Warrant
346. “No-Knock” Warrants
347. Who May Serve a Warrant
348. Knock and Announce and the Use of Force in Execution of a Warrant
349. Time Limit on Length of Search
350. Time Limit on Execution of Warrant: The Staleness Doctrine
351. Return of the Search Warrant
352. Attack on the Search Warrant
353. Reasonable Searches Without Warrant: Exceptions to the Warrant
Requirement
354. Search and Seizure Incident to a Lawful Arrest
355. The Vehicle Exception
356. Inventory Searches
357. Consent Searches
358. Exigent Circumstances Searches and Seizures
359. Plain View Doctrine
360. Search and Seizure on Less Than Probable Cause: Stop and Frisk
andReasonable Suspicion in Other Circumstances
361. The Permissible Scope of Stops
362. Extension of Frisks to Vehicles and Homes
363. Suspicionless Stops and Searches: The Special Needs Exception to the
Probable Cause and Warrant Requirements
364. Objecting to the Introduction of Evidence Claimed to Be Illegally
Seized
365. Standing
366. Motion to Suppress Evidence
367. Review and Application
368. Summary
369. Key Terms
370. Questions for Review
371. Workplace Applications
372. Ethical Dilemma
373. Endnotes
374. Chapter 10: Exclusionary Rule—Identification Procedures
375. Chapter 10 Introduction
376. Identification Procedures and the Exclusionary Rule
377. Identification Procedures and the Right to Counsel
378. The Critical Stage Test for the Right to Counsel
379. When Counsel Need Not Be Present
380. Identification Procedures and Due Process
381. Effect of Illegal Pretrial Identification on In-Court Identification
382. Only Unnecessarily Suggestive Pretrial Identifications Are Illegal
383. Types of Suggestive Identification Procedures
384. Size of the Lineup or Array
385. Collaboration Between Witnesses
386. Police Instructions or Statements to Witnesses
387. Composition of the Lineup or Photo Array
388. Different Appearance of the Accused
389. Other Suggestive Procedures Pertaining Solely to Photo Arrays
390. Determining the Reliability of a Suggestive Identification: The Five
Factors of the Biggers Case
391. Witness’s Opportunity to View the Criminal at the Time of the Crime
392. Witness’s Degree of Attention
393. Accuracy of the Description
394. Level of Certainty Demonstrated by the Witness at the Confrontation
395. Length of Time Between the Crime and the Confrontation
396. Review and Application
397. Summary
398. Key Terms
399. Questions for Review
400. Thinking Critically About Evidence
401. Workplace Applications
402. Ethical Dilemma
403. Endnotes
404. Chapter 11: Circumstantial Evidence
405. Chapter 11 Introduction
406. Direct Evidence Versus Circumstantial Evidence
407. Direct Evidence Defined
408. Circumstantial Evidence Defined
409. Why Use Circumstantial Evidence?
410. Relevance of Circumstantial Evidence
411. Different Functions of Circumstantial Evidence
412. Admissibility of Other Crimes, Acts, or Wrongs
413. Other Crimes to Prove Motive or Intent
414. Other Crimes to Prove Plan (or Design)
415. Other Crimes to Prove Lack of Mistake or Accident: The Doctrine of
Chances
416. Other Crimes or Misconduct to Prove Identity
417. Means or Capability to Commit a Crime
418. Consciousness of Guilt
419. Character of the Defendant
420. Proving the Defendant’s Good Character
421. Prosecution’s Proof of Defendant’s Bad Character
422. Amount of Proof to Show Good or Bad Character
423. Proof of Prior Sexual Misconduct
424. Character of Victims
425. Homicide Victim
426. Victim in Sex Offense Cases
427. State of Mind of Homicide Victim When Defendant Claims Self-
Defense or Accident
428. Character of Witness
429. The Accused as Witness
430. Review and Application
431. Summary
432. Key Terms
433. Questions for Review
434. Thinking Critically About Evidence
435. Workplace Application
436. Ethical Dilemma
437. Endnotes
438. Chapter 12: Documentary Evidence and the Right of Discovery
439. Chapter 12 Introduction
440. Documents as a Kind of Evidence
441. Authentication
442. Best Evidence Rule
443. Primary Versus Secondary Evidence
444. Lost or Destroyed Writings, Recordings, or Photographs
445. Document in Possession of Adverse Party
446. Collateral Matter
447. Document in Custody of Public Officer
448. Original Documents Too Voluminous to Examine
449. What Is an Original Document?
450. Inscribed Chattel
451. The Right of Discovery in Criminal Cases
452. Discovery Through Preliminary Hearing
453. Growth of the Right of Discovery
454. Pretrial Discovery
455. Matters That May Be Examined
456. Defendant’s Right to Information About Prospective Witnesses
457. Defendant’s Right to Identity of Informers
458. Procedure for Pretrial Discovery by Defendant
459. Prosecution’s Right of Discovery
460. Defendant’s Right to Original Investigative Notes and Recordings
461. Review and Application
462. Summary
463. Key Terms
464. Questions for Review
465. Thinking Critically About Evidence
466. Workplace Applications
467. Ethical Dilemma
468. Endnotes
469. Chapter 13: Physical Evidence
470. Chapter 13 Introduction
471. What Is Physical Evidence?
472. Physical Evidence Must Be Relevant
473. Laying Foundation for Physical Evidence
474. Introducing Physical Evidence
475. Attacking Physical Evidence
476. Sources of Physical Evidence
477. Kinds of Physical Evidence
478. Chain of Custody
479. Securing the Crime Scene and Collecting Physical Evidence
480. Connecting Objects with Issues at Trial: Chain of Custody, or
Possession
481. Identification by Custody and Control
482. Identification by Proof of Chain of Custody
483. Marking Objects for Identification
484. Storage of Physical Evidence
485. Delivering Physical Evidence
486. Preparation of Physical Evidence for Use in Court
487. Gruesome Objects
488. Photographs of the Crime Scene or Corpses
489. Videos of the Crime Scene or Corpses
490. Physical Objects Not Produced in Court
491. Viewing of the Crime Scene by the Jury
492. Application Case
493. Review and Application
494. Summary
495. Key Terms
496. Questions for Review
497. Thinking Critically About Evidence
498. Workplace Application
499. Ethical Dilemma
500. Endnotes
501. Chapter 14: Photographic, Recorded, and Computer-Generated
Evidence
502. Chapter 14 Introduction
503. Photographs, Recordings, and the Like as Evidence
504. Prints Versus Projected Images
505. Videos
506. Photocopy, X-Ray, and Computer-Generated Output
507. The Rise of Technology
508. First Rule of Admissibility—Foundation for Relevance
509. Gruesome Photographs and Videos
510. Nude Photographs
511. Second Rule of Admissibility—Foundation for Authentication
512. Accuracy Is Required
513. Proof of Accuracy
514. Photographer Not Necessary to Verify Accuracy
515. Photographer Need Not Be an Expert
516. Foundation by Chain of Custody, or Possession
517. Foundation by Distinctive Characteristic
518. What Should Be Used for Identification Purposes
519. Where the Object Should Be Placed
520. What Data Should Be Included on the Identification Card
521. Placement of Measurement Devices in the Scene
522. Posed Photographs and Video Recordings
523. Methods of Presentation in the Courtroom
524. Photographic Prints as Evidence
525. Demonstrative Diagrams, Charts, and Boards
526. Projected Images
527. Consideration of Other Matters
528. How Many Photographs Should Be Taken
529. Preparing Photographs, Videos, and Computer Output for Trial Use
530. Photographic, Video, Software, and Equipment to Be Used
531. X-Ray Photographs
532. Review and Application
533. Summary
534. Key Terms
535. Questions for Review
536. Thinking Critically About Evidence
537. Workplace Applications
538. Endnotes
539. Chapter 15: How to Testify Effectively
540. Chapter 15 Introduction
541. The Law Enforcement Professional’s Role
542. Problems of the New Professional: Notification to Appear
543. What to Do Before the Trial
544. What to Wear in Court
545. Where to Appear and What to Do
546. Conduct Before and During the Court Session
547. Conferring with the Prosecuting Attorney
548. Being Called to the Stand
549. On the Witness Stand
550. Voice and Grammar
551. Profanity and Vulgarity
552. Jargon
553. References to the Accused
554. Answering Questions on the Stand
555. When the Witness Forgets Testimony
556. Cross-Examination
557. After Testifying
558. Review Case After Verdict
559. Review and Application
560. Summary
561. Key Terms
562. Questions for Review
563. Glossary
564. Glossary
565. Case Index
566. Case index
567. A
568. B
569. C
570. D
571. E
572. F
573. G
574. H
575. I
576. J
577. K
578. L
579. M
580. N
581. O
582. P
583. R
584. S
585. T
586. U
587. V
588. W
589. Y
590. Subject Index
591. Subject Index
592. A
593. B
594. C
595. D
596. E
597. F
598. G
599. H
600. I
601. J
602. K
603. L
604. M
605. N
606. O
607. P
608. Q
609. R
610. S
611. T
612. U
613. V
614. W
615. X
616. Y
617. Accessibility Content: Text Alternatives for Images
618. Figure 1.1 Text Alternative (Chapter 1)
619. Figure 1.3 Text Alternative (Chapter 1)
620. Figure 2.1 Text Alternative (Chapter 2)
621. Figure 2.2 Text Alternative (Chapter 2)
622. Figure 2.3 Text Alternative (Chapter 2)
623. Figure 4.1 Text Alternative (Chapter 4)
624. Figure 4.2 Text Alternative (Chapter 4)
625. Figure 4.3 Text Alternative (Chapter 4)
626. Figure 4.4 Text Alternative (Chapter 4)
627. Figure 5.1 Text Alternative (Chapter 5)
628. Figure 7.1 Text Alternative (Chapter 7)
629. Figure 7.2 Text Alternative (Chapter 7)
630. Figure 8.1 Text Alternative (Chapter 8)
631. Figure 9.2 Text Alternative (Chapter 9)
632. Figure 11.1 Text Alternative (Chapter 11)
633. Figure 11.2 Text Alternative (Chapter 11)
Glossary
accident investigator
The person who investigates the causes and results of vehicle
accidents.
acoustical spectrography
The branch of science that consists of composing the voice or sound
into harmonic components and obtaining a visual pattern of the sound
—a spectrogram.
admission
Any statement, verbal or otherwise, made by a party that can be used
in evidence against him or her.
adoptive opposing party’s statement (admission)
A “statement” that occurs when a party, though not making the
statement himself or herself, adopts a statement made by another,
usually by silence in the face of an accusation.
adverse witness
A witness aligned with the opposing side.
affidavit
A written statement, sworn under oath, in which the officer states the
facts within his or her personal knowledge that support the criminal
complaint.
affirmative defense
A reason under the law that allows a defendant to claim to be
exonerated, one that the defendant must affirmatively claim and prove.
anticipatory warrant
A warrant issued with a provision that it be executed upon the
occurrence of a triggering condition.
apparent authority doctrine
The principle by which a third-party consent search will be deemed
reasonable if the facts available to the officer at the moment of entry
would cause a reasonable person to believe that the consenting party
had common authority for most purposes over the premises or
property.
arraignment and plea
 The defendant’s appearance in court after the filing of a formal charge,
at which the defendant enters a formal plea to the charges, and at
which issues about right to counsel and bail are decided by the judge.
attenuation doctrine
The exception to the fruit of the poisonous tree doctrine in which the
connection between the unlawful conduct of the police and the
discovery of the challenged evidence is so unrelated as to dissipate the
taint.
attesting witness
A person who can authenticate or verify the accuracy of the evidence.
attorney
One who is authorized to practice law in a given state or nation.
authentication
The presentation of proof to show that an object is what its proponent
claims it to be.
bail
A deposit of cash, other property, or a bond guaranteeing that the
accused will appear in court.
balancing test, or legal relevancy
The requirement that relevant evidence not be admitted if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury.
best evidence rule
The rule that requires that, in proving the terms of a document, the
original writing must be produced, unless the document is shown to be
unavailable for some reason other than the bad faith act of the party
seeking to introduce the document.
bias
A witness’s interest in the case or its outcome.
bond
A written promise to pay the bail sum, posted by a financially
responsible person, usually a professional bondsman.
booking
A formal processing of the arrested person by the police that involves
recording the arrest, fingerprinting, photographing, and inventorying
all the personal items taken from the suspect.
Brady material
 Information favorable to the defense, in the possession of the
prosecution, material to the defendant’s case that must be disclosed to
the defense.
burden of proof
The law’s requirement that a particular party introduce evidence in a
lawsuit and persuade the fact-finder that the evidence is believable.
business or public records
The hearsay exceptions that permit certain written reports or records
that record acts, events, conditions, opinions, or diagnoses to be
admitted into evidence without requiring the person with knowledge of
the facts contained in the records to be called as a witness.
case-in-chief
That portion of the trial that comprises the main evidence, for either
the prosecution or the defense.
certified copy
A copy of a document to which is attached a statement by the person,
official, or clerk having custody of the record certifying that the
document is a true copy of the original.
chain of custody
A method of authentication in which evidence is presented showing
that the photograph or recording has been in the constant possession of
one or more persons and that the evidence is in the same condition as it
was originally.
challenges for cause
The motion that a prospective juror should be excluded because he or
she is incapable of being impartial.
character evidence rule
The rule that states evidence of a trait of character to prove a person’s
conduct in conformity with that trait is inadmissible, with a few
exceptions.
character witness
A person who has sufficient personal knowledge of another individual
to be in a position to render an opinion or testify to the reputation of
the character of the person in question.
circumstantial evidence
Evidence that tends to establish the facts in dispute by proving the
existence of another set of facts from which an inference or a
 presumption can be drawn.
clergy
Priests, ministers, religious practitioners, or similar functionaries who
have been ordained by a religious denomination or organization.
client
One who goes to an attorney seeking professional services or advice.
collateral matter
A matter only incidentally related to the issues at trial. When the
contents of a document relate to such a matter, the original document
need not be produced in court.
common authority
Mutual use of the property searched by persons generally having joint
access to or control over the property for most purposes.
communicant
One who seeks out the clergy in a religious capacity for the purpose of
securing spiritual advice.
conclusion
The ultimate inference drawn from a fact observed; a synonym for
“opinion.”
conclusive presumption
A presumption that the law demands or directs be made from a set of
facts and that cannot be refuted by evidence.
confession
A conscious acknowledgment of guilt by an accused.
Confrontation Clause
The provision of the Sixth Amendment to the Constitution of the
United States that guarantees the defendant in a criminal case the right
“to be confronted with the witnesses against him.”
consciousness of guilt
Evidence of an accused’s uncustomary acts, statements, or appearance
from which guilt may be inferred.
consent
A voluntary agreement by a citizen to an officer, allowing the officer
to search the citizen’s property, given without coercion and with
authority over the place or thing to be searched.
consent search
 Another of the well-delineated exceptions to the warrant requirement,
as well as an exception to the probable cause requirement.
contempt
The power of a court to punish persons for failure to obey court orders
or coerce them into obeying court orders.
contraband
An object or material that is illegal for anyone to possess.
contradiction by cross-examination
Impeachment by asking the witness about facts that are directly in
opposition to those testified to by the witness on direct examination.
contradiction generally
The form of impeachment that asserts the opposite of a statement or
specifically denies a statement.
contradictory evidence
Evidence used to prove a fact contrary to what has been asserted by a
party or witness.
corpus delicti
Required proof, other than a confession, that a crime has been
committed.
corroborative evidence
Evidence that is supportive of other evidence already given, tending to
strengthen or confirm the prior evidence introduced.
credibility
The quality in a witness that renders the witness’s evidence worthy of
belief.
crimes experts
Persons, often law enforcement officers, who are experts in the
methodology and paraphernalia involved in committing specific
crimes.
criminal complaint
A document that charges the defendant with a specific crime, usually
signed by a law enforcement officer or prosecutor.
criminalist
A specialist in the application of science to crime and the law.
critical stage
The initiation of an adversarial judicial proceeding, whether by way of
formal charge, preliminary hearing, indictment, information, or
 arraignment.
cross-examination
The rigorous examination of a witness by opposing counsel in which
the questioner seeks to detract from the witness’s credibility, often by
using leading questions.
cumulative evidence
Evidence that repeats earlier testimonial or tangible evidence.
curtilage
The land immediately surrounding a home and associated with it,
where one has a reasonable expectation of privacy.
custodial interrogations
Interrogations conducted with the suspect in custody. Such
interrogations can occur only after the suspect has been read, and
waived, his or her Miranda rights.
custody
Custody results when a police officer restrains a person in a manner
consistent with a formal arrest, regardless of the situation or intent of
the officer.
dangerous patient exception
An exception to psychotherapist-patient privilege, existing in most
states, which provides that, if the psychotherapist has reasonable cause
to believe that the patient is in such mental or emotional condition as
to be dangerous to himself or herself, or to another person or another’s
property, the disclosure of the communications is necessary to prevent
the threatened danger.
Daubert-Kumho test
The new test for admissibility of expert testimony, requiring the trial
judge to determine that the subject of an expert’s testimony has
achieved the stature of “scientific knowledge” based on five factors:
(1) testing of the theory or technique; (2) peer review and publication
of the theory or technique; (3) the particular scientific technique’s
known or potential rate of error; (4) the existence and maintenance of
standards controlling the technique’s operation; and (5) the theory or
technique’s “general acceptance.”
declarant
A person who makes a statement.
declaration against interest
 An exception to the hearsay rule for a statement made by a person who
is not a party to the case and who is unavailable as a witness. To
qualify as a declaration against interest, the person’s statement must
have been contrary to the person’s interests at the time it was made.
defendant’s good character rule
The rule of evidence that permits an accused to introduce evidence of
good character in an attempt to prove his or her innocence.
deliberate elicitation
When the law enforcement officer acts with the purpose of eliciting an
incriminating response from a suspect after counsel has been obtained
or the adversarial proceeding has begun.
demonstrative evidence
Evidence used solely to illustrate a witness’s testimony. A
representation of the object to be entered into evidence: a copy, an
imitation, a model, or a reproduction.
deposition
A written declaration, under oath, made upon notice to the adverse
party, during which the adversary is present and cross-examines.
deterrence rationale
The rationale for the exclusionary rule that rests upon the view that, to
deter police officers from disregarding the Constitution, it is necessary
to exclude from evidence at trial the evidentiary fruits of illegal police
conduct.
direct evidence
Testimony of a person who asserts or claims to have actual knowledge
of a fact, such as an eyewitness.
direct examination
The questioning of a witness by the side who calls that witness.
discovery
The right afforded to the adversary in a trial to examine, inspect, and
copy the evidence in the hands of the other side.
distinctive characteristic
A method of authentication whereby a unique object is placed in the
scene of a photograph or recording for purposes of identification.
DNA experts
Persons educated in genetics, biology, chemistry, or other sciences who
work with and present DNA evidence.
doctrine of chances
The use of evidence of other, similar occurrences to show that the
charged crime is not an isolated event due to chance.
doctrine of completeness
The rule that provides that if a party seeks to admit part of a document,
the opposing party may “require the introduction at that time of any
other part or any other writing or recorded statement which ought in
fairness to be considered contemporaneously with it.”
document examiner
An expert in the analysis of documents who identifies documents,
paper, handwriting, and the like.
duplicate
A copy produced by methods possessing an accuracy that virtually
eliminates the possibility of error.
dying declaration
An exception to the hearsay rule that provides that a statement made
by an unavailable declarant may be admitted into evidence in a
prosecution for a homicide or, in a civil case, a statement that the
declarant, while believing the declarant’s death to be imminent, made
about its cause or circumstance.
ELMO
A computer-controlled projection system, including a visual presenter,
for use in the courtroom. ELMO is actually the name of the company
that created the system; the acronym stands for Electronic Light
Magnetic Optical.
emergency or exigent circumstances
Those circumstances that will justify a suggestive presentation of a
suspect to a witness, such as when the witness is in danger of dying.
evidence
Information that people base decisions on. In a legal sense, evidence is
the information presented in court during a trial that enables the judge
and jury to decide a particular case.
evidence locker
A place, usually in a police station, where evidence gathered by law
enforcement officers is deposited and kept safe from tampering
pending its use in court.
evidence of a crime
 Any object that demonstrates that a crime has been committed.
evidence of other crimes, acts, or wrongs
Evidence of bad acts used not to prove a trait of character but to prove
something else, such as motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.
evidentiary objections
Legal arguments raised by opposing counsel during trial to prevent a
witness from testifying or other evidence from being admitted.
excited utterance
A statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.
exclusionary rule
The rule that provides that illegally obtained evidence will be excluded
from use in a criminal trial.
exclusive control
Personal possession of an object of evidence from the time the officer
picks it up at the crime scene until it is produced in court.
exculpatory evidence
Any evidence that tends to prove the innocence of an accused.
exemplified copy
A copy of a record of conviction that has been certified by the clerk of
the court, as well as by the presiding judge of the particular
jurisdiction, stating that the clerk correctly certified the form.
exigent circumstances search and seizure
Another of the well-delineated exceptions to the warrant requirement
permitting a police officer to enter premises in a situation requiring
immediate action. The Supreme Court has recognized four such
circumstances: (1) hot pursuit of a fleeing felon; (2) imminent
destruction of evidence; (3) need to prevent a suspect’s escape; and (4)
risk of harm to the police or to others.
expert on mental illness
An expert on the mental condition of persons, usually a psychologist
or psychiatrist.
expert witness
A person skilled in some art, trade, science, or profession. An expert
must have knowledge, skill, experience, training, or education that is
beyond that of the average person.
fair probability
The test for the amount of belief of suspicion required for a
determination of probable cause.
false friend doctrine
The doctrine, in defining one’s reasonable expectation of privacy, that
what a person willingly reveals to another, on the assumption that the
other is a friend, is thereby revealed to the world if the so-called friend
turns out to be no friend at all.
Federal Rules of Evidence (FRE)
The most common codification of evidence law—the rules that apply
in all federal courts throughout the United States and in the 43 states
that have relied upon them as a model in adopting their own evidence
codes.
fingerprint expert
An expert in the identification of fingerprints by comparing unknown
and known samples of fingerprints.
footprint expert
An expert in the identification of unknown footprints and walking
patterns.
former testimony
The exception to the hearsay rule that allows into evidence testimony
given by a now unavailable witness at a prior proceeding.
foundation
The requirements of relevance and authentication, which must be met
for admission of an item of evidence.
frisk
A limited patdown search of the outer garments of a person to
determine whether he or she possesses a weapon with which to cause
injury to an officer or others.
fruit of a crime
Property that is seizable by a police officer, such as stolen or
embezzled property.
fruit of the poisonous tree doctrine
The principle that any evidence derived from a violation of a
defendant’s constitutional rights is inadmissible.
Frye test
 The former test for admissibility of expert testimony. Required that the
testimony be based on scientific methodology “generally accepted as
reliable in the relevant scientific community.”
good faith exception
This exception to the exclusionary rule allows the admission of
evidence even if there is some technical defect in the warrant, as long
as the executing officer has an objectively reasonable belief that the
warrant is valid.
grand jury
A panel of persons chosen through strict court procedures to review
criminal investigations and, in some instances, to conduct criminal
investigations. Grand juries decide whether to charge crimes, in the
form of an indictment, in the cases presented to them or investigated
by them.
habeas corpus
A form of legal action that seeks to free a prisoner from unlawful
confinement.
hearing in camera
A judge’s consideration, privately, in chambers, of the validity of a
claim; here, specifically, a claim that a privilege does or does not exist.
hearsay
A statement that the declarant does not make while testifying at the
current trial or hearing and a party offers in evidence to prove the truth
of the matter asserted in the statement.
holder of a privilege
That person who benefits from the privilege and who has the power to
waive it.
hung jury
A jury that cannot reach a verdict.
hypothetical questions
Questions based on facts, data, or opinions that have some relation to
the matter at issue and upon which the expert witness is asked to
render an opinion.
identification card
A card or paper containing identification data placed at a crime scene
before photographing or recording for purposes of enabling easy
authentication.
impeachment
A process or a result that diminishes or destroys the believability of a
witness’s testimony.
impeachment exception
An exception to the exclusionary rule that applies to Miranda or the
Fourth Amendment, which allows statements taken in violation of
Miranda or the Fourth Amendment to be used at trial to impeach the
testimony of the accused.
implied, or adoptive, opposing party’s admission
Silence in the face of an accusation when a reasonable person would
respond.
incompetency
The inability to act as a witness. Today, there are few grounds for
incompetency, and in federal courts and all states except Arkansas
(where atheists are not competent), all persons are competent to be a
witness.
inconsistent statements
Statements inconsistent with the present testimony. Such statements
are logically relevant to impeach a witness because one who speaks
inconsistently is less likely to be accurate or truthful.
independent source doctrine
One of three exceptions to the fruit of the poisonous tree doctrine. This
exception holds that, if the same information or knowledge is also
gained through a source independent of the illegality and this fact can
be shown by the prosecution, the information can be admissible
through this source but not through the illegal search.
indicia of reliability
Those facts indicating an identification is reliable—particularly, the
five factors of the Biggers case.
indictment
A formal written accusation by a grand jury charging a specified
person with the commission of a specified crime, usually a felony.
inevitable discovery doctrine
An exception to the fruit of the poisonous tree doctrine that states that
the challenged evidence is admissible if the prosecution can show that
the evidence would have been inevitably discovered, even in the
absence of the police illegality.
inference
A conclusion drawn from an observation or a series of observations.
information
A formal written accusation submitted to the court by the prosecutor,
alleging that a specified person has committed a specified crime.
inscribed chattel
An object with words and/or images written, painted, or engraved on
it.
instrumentality of a crime
Property that is seizable by a police officer that was used as the means
of committing a crime, such as a gun.
intent
A state of mind; it expresses mental action that is usually coupled with
an outward physical act to cause a particular result.
interrogation
Express questioning or its functional equivalent, that is, any words or
actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.
inventory search
Another of the well-delineated exceptions to the warrant requirement
that permits a police officer to inventory the property of a vehicle or
person for the protection of the property and the police.
jails
The facilities used to maintain custody of persons arrested pending
prosecution and to maintain custody of those sentenced to short
periods of confinement, usually less than one year.
Jencks Act
A federal statute that deals only with the right of the defendant to
discover statements made by a government witness. The statute is
named after the case of Jencks v. United States.
judgment of acquittal
A judicial decision on whether the prosecution has satisfied its burden
during the presentation of its case-in-chief.
judicial notice
The acceptance of a fact by a judge without formal proof, in the form
of testimony or tangible evidence, being presented. A substitute for
 evidence.
jurisdiction
The power or authority of the court to act with respect to any case
before it.
jury deliberation
The review of evidence by the jury in an attempt to reach a verdict.
jury nullification
The power of a jury in a criminal case to acquit a defendant for any
reason or no reason at all.
knock and announce, or knock and notice
The constitutional requirement that, before an officer may execute a
search warrant by forcibly entering the premises, the officer must
knock and announce his or her presence and purpose for entering.
law of evidence
The rules that govern what a jury can hear and see during the trial of a
case.
lay opinion testimony
In an American courtroom, testimony by nonexpert witnesses in the
form of opinion; must be based on rational inference from the facts
observed and necessary for a clear understanding of the witnesses’
testimony.
lay witness
A person who has some personal knowledge about the facts of the case
and who has been called upon to relate this information in court.
laying the foundation
The identification process to show that an object is authentic.
leading question
A question that suggests to the witness the answer sought by the
questioner.
lineup
The presentation to a victim or witness of a line of persons who all
look similar to see if one can be identified as the perpetrator of the
crime.
mandatory presumption
The form of presumption that requires the jury to find the presumed
fact from the existence of the basic fact.
marital communications privilege
 The rule that any communication between spouses during the marriage
is privileged.
Massachusetts procedure
An alternative procedure by which a court decides whether a
confession is voluntary. If the judge decides that the confession is
voluntary, the judge instructs the jury as to the definition of
voluntariness and tells the jury to consider the confession as evidence
only if it finds that the confession was voluntary.
material evidence
Evidence that pertains to a fact of consequence to the case on trial.
medical examiner or coroner
The government medical expert called to give opinion testimony as to
the cause of death in a homicide.
Miranda warnings
The warnings required by the case of Miranda v. Arizona to be given
to a suspect in custody before interrogation by a police officer can be
valid.
modus operandi
A distinctive pattern of committing crimes.
motion in limine
A motion to exclude or admit evidence, often made before trial and
usually heard out of the presence of the jury.
motion to suppress
The written request to a court made by a defendant in a criminal case
objecting to illegally obtained evidence.
motive
That which moves a person to act or explains the reason a person
acted.
narrative
The form of interrogation in which the witness relates what happened
in his or her own words, without interruption.
neutral magistrate
A person who acts as magistrate (or judge) who can issue a warrant
upon application of a law enforcement officer. Such person cannot be
associated with law enforcement or the prosecution.
news reporter
 A publisher, an editor, a reporter, or other person connected with or
employed by a newspaper, magazine, or other periodical publication or
by a radio or television station.
notice to produce
A formal, written notice issued by one party to another requiring the
production of a document.
on-call
A direction in a subpoena that states that the officer is not needed to
appear personally in court unless called by the prosecutor. It requires
that the officer be readily available.
open fields doctrine
The doctrine, in determining one’s reasonable expectation of privacy,
which states that people do not have a legitimate expectation of
privacy in open fields, even if law enforcement officers trespass upon
private property in order to observe the open fields.
opening statement
A summary of how the prosecution expects its evidence to show the
defendant guilty beyond a reasonable doubt or how the defense
attorney expects to raise a reasonable doubt.
operative legal fact
A statement that creates or destroys a legal relationship, right, power,
or duty.
opposing party’s statement (admission)
Any statement, verbal or otherwise, made by a party that can be used
in evidence against him or her.
original document
The document itself, “or any counterpart intended to have the same
effect by the person who executed or issued it.” Additionally, “[f]or
electronically stored information, ‘original’ means any printout—or
other output readable by sight—if it accurately reflects the
information.” With respect to photographs, the original is the negative
or any print made from the negative.
orthodox procedure
The prevalent procedure by which a court decides whether a
confession is voluntary. In this procedure, the trial judge decides
whether the confession is voluntary, in which case the confession is
 introduced into evidence and the judge instructs the jury to consider
the confession along with all the other evidence presented.
overrule the objection
A ruling by the judge that permits the witness to answer the question
posed.
parole service
An agency of the state correctional system that is similar to the
probation department but supervises those released on parole from the
penitentiary.
paroled
When a person who has been convicted of a felony and sentenced to a
term in prison is released under supervision into the community prior
to the expiration of the full sentence.
past recollection recorded
A record of a fact, known by a witness at one time but not presently
remembered, that will qualify as evidence.
patient
Any person who consults a psychotherapist or physician for the
purpose of the diagnosis or the treatment of a mental or emotional
condition.
peremptory challenge
The motion that excludes a prospective juror from the jury panel
without specific reason or justification.
perjury
Knowingly making a false statement about a matter material to a case
or swearing or affirming to the truth of a previously made statement
that one knows to be untrue. May be a misdemeanor or felony.
persuasion burden
The element of the burden of proof that requires a party to persuade
the trier of fact on the issue at trial.
photographic array
The presentation to a witness of a number of photographs for the
identification of the perpetrator.
photographs
Photographic images or their equivalent stored in any form.
physical evidence
 Material objects in a criminal trial, for example, a gun, a knife,
bloodstained clothing, a latent fingerprint, or a photograph.
pictorial testimony
Photographic evidence used to illustrate a witness’s testimony.
plain feel doctrine
The principle, extending the plain view doctrine to the sense of touch,
that allows an officer to seize an object during a lawful patdown
search, if the object’s incriminating nature is immediately apparent,
meaning that the officer has probable cause to believe the object is
contraband or fruits, instrumentalities, or evidence of a crime.
plain view doctrine
The last of the well-delineated exceptions to the warrant requirement
providing that an officer may seize an object without a warrant if (1)
the officer observes the object from a lawful vantage point; (2) the
officer has a right of physical access to the object from the lawful
vantage point; and (3) the nature of the object is immediately apparent
as an article subject to seizure.
polygraph experts
Persons expert in the workings, use, and results of tests using
polygraphs.
preliminary hearing
A court proceeding in which a judge decides whether there is enough
evidence that an accused person committed a crime to hold that person
for trial.
present sense impression
A statement describing or explaining an event or a condition, made
while or immediately after the declarant perceived it.
presumption
A substitute for evidence whereby the fact-finder is allowed to
conclude that a certain fact exists because some other fact is found to
exist.
pretrial discovery
A reciprocal exchange of information between the prosecuting and
defending attorneys, before trial, either as ordered by the court in a
particular case or required by statute or rule.
prima facie case
 The amount of proof the prosecution must present in its case-in-chief
—evidence sufficient to establish that a crime was committed and that
the defendant probably did it.
prima facie criminal
A case in which the prosecution has established that a crime has been
committed and that the accused probably committed it.
prima facie criminal evidence
A case in which the prosecution has established that a crime has been
committed and that the accused probably committed it.
prima facie evidence
Evidence that, standing alone, unexplained or uncontradicted, is
sufficient to establish a given fact or group of facts constituting a
party’s claim or defense.
primary evidence
An original document.
prior consistent statement
A statement made previously that is consistent with the present
testimony of the witness. It is admissible only to rebut an express or
implied charge that the declarant recently fabricated it or acted from a
recent improper influence or motive in so testifying.
prior inconsistent statement
A witness’s previously made statement that contradicts the witness’s
current in-court testimony.
prisons
Penal institutions maintained by the state or federal government
consisting of state penitentiaries, reformatories, and juvenile training
facilities.
privilege against self-incrimination
The constitutionally based right that permits a witness to refuse to
answer any question if the answer would tend to show that the witness
is guilty of a crime and would subject the witness to the danger of
prosecution and conviction.
privileged communications
Exchanges of confidential information between persons who are in a
privileged relationship.
probable cause to arrest
 When the facts and circumstances within the officer’s knowledge, and
of which he or she has reasonably trustworthy information, are
sufficient to warrant a person of reasonable caution to believe, by a fair
probability, that a particular individual has committed, or is
committing, a particular offense.
probable cause
Although the Fourth Amendment provides that no warrant shall be
issued except upon probable cause, it does not spell out what probable
cause is. The definition of probable cause has been developed
primarily through court decisions and interpretation.
probable cause to search
When the facts and circumstances within an officer’s knowledge, and
of which he or she has reasonably trustworthy information, are
sufficient in themselves to warrant a person of reasonable caution in
the belief that an item subject to seizure will be found in the place to be
searched.
probation
The most frequent sentence imposed on first-time offenders, whereby
the offender is released back into the community and required to obey
the rules and conditions set out in writing by the probation officer after
approval by the judge.
probation department
An agency that investigates defendants prior to sentencing, provides a
pre-sentence probation report to the court, and supervises persons
placed on probation after conviction.
production burden
The element of the burden of proof that requires a party to produce
evidence at trial on a particular issue.
prompt arraignment rule
The rule requiring an arrested person to be brought before a
committing magistrate without unnecessary delay. Such a delay can
cause statements made by the arrested person to be found inadmissible.
Also known as the McNabb-Mallory rule.
proposed privilege rules
Those privilege rules drafted but not adopted as the Federal Rules of
Evidence.
protective sweep
 A quick and limited search of a premises, incident to an arrest and
conducted to protect the safety of police officers or others. It is
narrowly confined to a cursory visual inspection of those places in
which a person might be hiding.
psychotherapist
A person who has been authorized to practice medicine and devotes a
substantial portion of his or her time to the practice of psychiatry or a
person who is recognized by the laws of the particular jurisdiction as a
certified psychologist.
public safety exception
An exception to the requirement of Miranda warnings when police
officers ask questions reasonably prompted by a concern for the public
safety.
qualifying to be a witness
To qualify to be a witness, a person must possess witness capacity:
have personal knowledge of facts relevant to the case, be able to
understand the obligation to tell the truth, and take the oath or affirm
that he or she will testify truthfully.
rape shield laws
Laws that prohibit a person accused of a sexual offense from
introducing evidence of the sexual background or behavior of the
victim.
real evidence
In terms of physical evidence, the object itself.
reasonable doubt
The standard of proof in a criminal case. A doubt based upon reason:
that which would make a reasonable person hesitate to act in
connection with important affairs of life.
reasonable suspicion
That level of suspicion, less than probable cause, which permits an
officer to detain a suspect temporarily to make reasonable inquiry to
confirm or dispel the suspicion.
rebuttable presumption
A presumption that allows for the opposing party’s introduction of
contradictory evidence to rebut the presumption’s conclusion.
recognizance
A promise to appear in court.
re-cross-examination
Further questioning, after redirect examination, for clarification
purposes.
redirect examination
Further questioning, after cross-examination, for the limited purpose of
rebutting or clarifying information brought out during cross-
examination.
refreshing recollection
The process or fact of reviving a witness’s memory by a variety of
means.
relevance
A showing that an item of evidence has any tendency to make the
existence of any fact of consequence more or less probable than it
would be without the evidence.
relevant evidence
Evidence that “has any tendency to make a fact more or less probable
than it would be without the evidence; and … the fact is of
consequence in determining the action.”
res gestae
Literally, “the thing done.” The term is used most commonly to refer
to the spontaneous utterance exceptions to the hearsay rule but could
be meant to encompass any number of other exceptions. Therefore, it
is ambiguous and its use should be avoided.
return of the search warrant
A separate document attached to a warrant, that gives a list of the
property seized in connection with the search and must be returned to
the court after the search and seizure has been completed.
routine booking question exception
An exception to the requirement of Miranda warnings that allows
questions to be asked to secure the biographical data necessary to
complete booking or pretrial services.
rule on witnesses
The rule, often invoked by a trial judge, that witnesses be excluded
from the courtroom during trial, so that one witness cannot hear the
testimony of another.
rulings on objections
 The judge’s decision on evidentiary objections: overruled, the witness
may testify; sustained, the witness must not answer the question.
search incident to a lawful arrest (SILA)
One of the well-delineated exceptions to the warrant requirement that
permits an officer, without a warrant and further probable cause, to
search the person of and certain areas around an arrestee incident to a
lawful arrest.
search warrant
A written order issued upon probable cause by a neutral and detached
magistrate, in the name of the people, to a peace officer directing the
officer to search a particular person or place and to seize specifically
described property and bring it before the magistrate.
secondary evidence
Evidence substituted for the original document.
seizure of a person
A seizure of the person occurs when, (1) by means of physical force or
show of authority, the person’s freedom of movement is restrained and
only if, and (2) in view of all of the circumstances surrounding the
incident, a reasonable person would not have believed he or she was
free to leave.
seizure of property
A seizure that occurs when there is some meaningful interference with
an individual’s possessory interests in that property.
self-authentication
The principle that authenticity of a document may be determined on its
face, without resort to outside evidence.
self-defense
The justifiable use of force to protect oneself from a real or threatened
attack. Generally, a person is justified in using a reasonable amount of
force in self-defense if he or she believes that the danger of bodily
harm is imminent and that force is necessary to avoid this danger.
sequestered jury
A jury removed from any outside influence.
show-up
The one-on-one presentation of a suspect to a victim or witness for
identification purposes.
silent witness
 A photograph, film, or video that has been taken by an automatic
camera with no operator present and introduced to document an event.
silver platter doctrine
The doctrine that allowed state officers who obtained evidence
illegally to hand it over to federal officers for prosecution in federal
court.
spousal incapacity privilege
The marital privilege that gives a spouse called to testify against his or
her spouse the privilege to refuse to testify.
staleness doctrine
The principle that, once a warrant is issued, it may not be held
indefinitely by the officer before the search is made.
standing
The right to contest an illegal search and seizure, or any claimed
constitutional or law violation.
state of mind
The exception to the hearsay rule that allows into evidence a
declarant’s assertion of his or her then-existing state of mind to prove
that the person actually had such a state of mind.
state of mind of the declarant
A statement offered to show the state of mind of the person who
uttered the statement, not of the person who heard the statement.
state of mind of the hearer
A statement that creates or affects the state of mind of another who
hears the statement.
statements for purposes of medical diagnosis or treatment
The exception to the hearsay rule that allows into evidence statements
that are made for—and are reasonably pertinent to—medical diagnosis
or treatment; and describe medical history; past or present symptoms
or sensations; their inception; or their general cause.
statements of prior identification
Statements made out of court identifying a person made after the
declarant has seen that person.
stipulation
Facts upon which the trial parties and their attorneys agree that may be
presented during the trial without formal proof being required.
stop
 A temporary detention, not amounting to a full-blown arrest, requiring
only reasonable suspicion that a particular individual is about to
commit, is committing, or has committed a crime.
subpoena
A court order demanding the presence of the person in court as a
witness.
subpoena duces tecum
A subpoena, or order to appear in court, commanding a person to bring
specified documents or objects with him or her.
substantive evidence
Evidence used to decide the existence or nonexistence of a fact.
sustain the objection
A ruling by the judge that prohibits the witness from answering the
question posed.
the well
That area in the courtroom, between the judge’s bench and counsel
tables, that is off-limits without the judge’s permission.
totality of the circumstances
The test for voluntariness of a confession.
totality of the circumstances (identification)
The test for suggestiveness that, in contrast to the per se rule, takes
into account all surrounding circumstances to determine whether the
exclusionary rule applies.
totality of the circumstances for consent
The test for consent that takes into account all of the circumstances
surrounding the giving of consent to determine whether a person has
voluntarily consented.
totality of the circumstances for probable cause
The test for probable cause, which is a fluid concept based on
nontechnical, common-sense considerations.
“traces of the mind” theory
The theory that allows into evidence statements that prove the
declarant has knowledge that he or she could have gained only by
actually having perceived some unusual event, circumstances, or
surroundings.
true presumption
 A presumption that requires that when the jury finds the basic fact to
exist, it must find the presumed fact to exist in the absence of evidence
to the contrary being introduced.
unresponsive answer
A witness’s answer that does not address the subject matter of the
question or goes beyond the scope of the question asked and relates to
some other matter.
vehicle exception
Another of the well-delineated exceptions to the warrant requirement
by which an officer may search the interior of a vehicle if he or she has
probable cause to believe that it contains contraband or fruits,
instrumentalities, or evidence of a crime.
venire
The pool of prospective jurors from which the jury panel is selected.
venue
The neighborhood, place, or county in which an act is declared to have
been done or, in fact, happened, thus defining the particular county or
geographical area in which a court with jurisdiction may hear and
determine a case.
vicarious opposing party’s statement (admission)
A statement not actually made by the party but by an individual acting
on behalf of a party as either a person expressly authorized to speak on
behalf of the party, an employee, or a co-conspirator.
voiceprint expert
An expert in voice identification, using the science of acoustical
spectrography.
voir dire
The process of questioning a panel of pro-spective jurors to select the
final panel; roughly it means “to speak the truth.”
voir dire of a proposed expert witness
The questioning process by which an expert witness is qualified.
voluminous records rule
An exception to the best evidence rule that permits a summary, chart,
or calculation of voluminous records to be presented in the place of the
records themselves.
witness capacity
 The elements of witness capacity are the ability to perceive, remember,
and narrate in an understandable manner, as well as sincerity.
witness immunity
Rules allowing witnesses to be spared from prosecution if the
witnesses furnish facts that might otherwise incriminate themselves.
witness stand
The seat taken by a witness to testify at trial.
witness voir dire
The process of hearing, usually conducted out of the presence of the
jury, by which a judge decides the qualification of a witness to testify.
writings and recordings
Letters, words, or numbers, or their equivalent, set down in any form
for writings or recorded in any manner for recordings.
Remarks
1. Patton v. United States, 281 U.S. 276 (1930).

2. Duncan v. Louisiana, 391 U.S. 145 (1968).

[Link] Baldwin v. New York, 399 U.S. 66 (1970).

4. 399 U.S. 78 (1970).

5. 435 U.S. 223 (1978).

6. 406 U.S. 356 (1972).

7. 406 U.S. 404 (1972).

8. 441 U.S. 130 (1979).

9. 590 U.S. ___, 140 [Link]. 1390 (2020).

14. Alaska Code of Civ. Pro. §09.20.010 (2018).

11. 141 [Link]. 1547, 1551 (2021).

12. Id. at 1582 n. 6.

13. See, e.g., Cal. Code Civ. Pro. §224 (West 2018). See also Nancy L.
Dickhuter, Jury Duty for the Blind in the Time of Reasonable
Accommodation, 32 Creighton L. Rev. 849, 873–74 n. 244 (1999).

18. 530 U.S. 466 (2000).

19. 536 U.S. 584 (2002).

20. 542 U.S. 296 (2004).

[Link] Sparf and Hansen v. United States, 156 U.S. 51 (1895). See also
Aaron McKnight, Jury Nullification As a Tool to Balance the Demands of
Law and Justice, 2013 B.Y.U.L. Rev. 1103 (2013).

22. 372 U.S. 335, 344 (1963).

23. Brady v. Maryland, 373 U.S. 83, 87 (1963).

24. Victor v. Nebraska, 511 U.S. 1, 5 (1994).

25. Holland v. United States, 348 U.S. 121, 140 (1954), as cited and quoted
in Victor, supra.

26. 498 U.S. 39 (1990).

[Link]. at 41.

28. 511 U.S. 1 (1994).

[Link] People v. Freeman, 882 P.2d 249 (Cal. 1994).

30. CALJIC 2.90 (2018). In 2005 the Judicial Council of California Jury
Instructions published a plain English set of criminal jury instructions,
CALCRIM. The definition of reasonable doubt in CALCRIM is “Proof
beyond a reasonable doubt is proof that leaves you with an abiding
conviction that the charge is true. The evidence need not eliminate all
possible doubt because everything in life is open to some possible or
imaginary doubt.” Judicial Council of California Criminal Jury Instruction
103 (West 2021).
31. Victor v. Nebraska, 511 U.S. at 18. The current approved Nebraska
reasonable doubt instruction reads “A reasonable doubt is one based upon
reason and common sense after careful and impartial consideration of all
the evidence. Proof beyond a reasonable doubt is proof so convincing that
you would rely and act upon it without hesitation in the more serious and
important transactions of life. However, proof beyond a reasonable doubt
does not mean proof beyond all possible doubt.” 1 Neb. Prac., NJI2d Crim.
2.0 (2016-2017 ed.) (West 2022).

32. 5 J. Wigmore, Evidence §1367 (3d ed. 1940), as cited in California v.

Green, 399 U.S. 149, 158 (1970).

33. 524 U.S. 296 (2004).

34. 543 U.S. 220 (2005).

1. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 591 (1993).
The full moon example stated in the text was used by the Court in Daubert’s
majority opinion.

2. Fed. R. Evid. 201(b).

3. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993);

Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999).

4. Rock v. Arkansas, 483 U.S. 44 (1987).

[Link].

6. The California presumption of paternity referred to in the text still exists,

Cal. Fam. Code §7540; however, the presumption can now be rebutted by
blood test evidence [Cal. Fam. Code §7541 (West 2018)] or by other factors
[Cal. Fam. Code §7611 (West 2018) (certain provisions of the Uniform
Parentage Act)]. In fact, it is possible for there to be competing presumed
fathers, in which case the courts must determine which of them shall be
declared the father ultimately. In other words, a presumption of paternity,
even one declared to be conclusive, is rebuttable now under California law.
See In re Jesusa V., 85 P.3d 2 (Cal. 2004).

7. Leary v. United States, 395 U.S. 6 (1969).

8. 18 U.S.C. §17 (West 2018).

9. Cooper v. Oklahoma, 517 U.S. 348 (1996).

10. Sandstrom v. Montana, 442 U.S. 510 (1979).

11. Mullaney v. Wilbur, 421 U.S. 684 (1975).

12. Patterson v. New York, 432 U.S. 197 (1977).

[Link] 2018 Connecticut Court Order 0411 (C.O. 0411).

2. Based on Table 74 (https//[Link]/crime-in-the-u.s/2019/crime-in-the-

u.s.-2019/topic-pages/tables/table-74 in [Link]
u.s/2019/crime-in-the-u.s.-2019/topic-pages/police-employee-data (last
visited 2/22/22).

[Link] Niall McCarthy, Private Security Outnumbers the Police in Most

Countries [Infographic], Forbes
[Link]
outnumbers-the-police-in-most-countries-worldwide-
infographic/#3f74b015210f (last visited 4/28/18).

[Link].

5. [Link]/content/pub/pdf/[Link] (last visited 01/21/13).

6. The Los Angeles County District Attorney reported in April 2018 that it
employed nearly 1,000 Deputy District Attorneys;
[Link] (last visited 4/28/2018).
7. James J. Tomkovicz & Welsh S. White, Criminal Procedure:
Constitutional Constraints upon Investigation and Proof xxvi n.2 (8th ed.
2017). Only the Fifth Amendment’s requirement of a grand jury indictment
for “capital or otherwise infamous crimes” and the Eighth Amendment’s
prohibition of “excessive bail” have not specifically been incorporated.

8. In re Gault, 387 U.S. 1 (1967).

9. The most recent statistic, mid-year 2016, was that 740,700 inmates were
incarcerated in “the nation’s local jails.” [Link]
ty=pbdetail&iid=6186 (last visited 4/28/18).

10. Peter Wagner & Wendy Sawyer, Prison Policy Initiative, Mass
Incarceration: The Whole Pie,
[Link] (last visited 2/22/22).

11. [Link] (last visited 2/22/22).

12. [Link] (last visited 2/22/22).

13. Steagald v. United States, 451 U.S. 204 (1981).

14. Erica Goode, Stronger Hand for Judges in the “Bazaar” of Plea Deals,
New York Times (March 22, 2012),
[Link]
[Link] (last visited 4/28/18).

15. Hurtado v. California, 110 U.S. 516 (1883).

1. Advisory Committee’s note preceding Article VIII of Federal Rules of

Evidence.

2. Reckard v. State, 234 A.2d 630, 633 (Md. Ct. Spec. App. 1967).
3. John Johnson, Conviction Tossed After 19 Years, Los Angeles Times,
May 1, 2004, at B.

4. 497 U.S. 836 (1990).

5. 483 U.S. 107 (1987).

6. 574 U.S. 40, 135 [Link]. 521 (2014).

7. 580 U.S. 206 (2017).

8. Jaffee v. Redmond 518 U.S. 1, 9 (1996), citing United States v. Bryan,

339 U.S. 323, 331 (1950) (quoting 8 John H. Wigmore, Evidence § 2192, p.
64 (3d ed. 1940)).

[Link]., citing Trammel v. United States, 445 U.S. 40, 50 (1980), quoting
Elkins v. United States, 364 U.S. 206, 234 (1960) (Frankfurter, J.,
dissenting).

10. Kentucky Rules of Evidence, Rule 501.

11. David Louisell, Confidentiality, Conformity and Confusion: Privileges

in Federal Court Today, 31 Tul. L. Rev. 101, 109–15 (1956), quoting Dean
Wigmore.

12. S. Rep. No. 93-1277, p. 13 (1974), as cited in Jaffee v. Redmond, 518

U.S. 1, 8 (1996).

13. 445 U.S. 40 (1980).

14. 518 U.S. 1, 116 S. Ct. 1923 (1996).

[Link]., at 8–9, quoting Trammel v. United States, 445 U.S. 40, 47 (1980).

16. 445 U.S. 40 (1980).

[Link]. at 52.

18. Catherine J. Ross, America—Implementing Constitutional Rights for

Juveniles: The Parent-Child Privilege in Context, 14 Stan L. & Pol’y Rev.
85, 86 (2003).

[Link].

20. The proposed ABA Model parent-child Privilege Statute was described
in the case of In re Grand Jury Proceedings, Unemancipated Minor Child,
949 F. Supp. 1487 (E.D. Wash. 1996).

21. In re A & M (People v. Doe), 403 N.Y.S.2d 375 (N.Y. App. Div. 1978)
(common law recognition of a parent-child privilege through the
constitutional right to family privacy); People v. Fitzgerald, 422 N.Y.S.2d
309, 312 (N.Y. App. Div. 1979) (extending the parent-child privilege to an
older child; holding that the privilege is not limited to minors); In re Ryan,
474 N.Y.S.2d 931, 931 (N.Y. Fam. Ct. 1984) (recognizing a grandmother as
a parent for parent-child privilege purposes). But see People v. Hilligas, 670
N.Y.S.2d 744, 747 (N.Y. Sup. Ct. 1998) (rejecting Fitzgerald for
independently living adults).

23. 8 John H. Wigmore, Evidence § 2280, p. 819 (McNaughten rev. 1961).

24. United States v. MHC Surgical Centers Associates, Inc., 911 F. Supp.
358 (N.D. Ind. 1995).

25. 518 U.S. 1 (1996).

[Link]. at 10.

[Link]. at 13.

28. 518 U.S. 1 (1996).

29. 551 P. 2d 334 (Cal. 1996).

30. 834 P. 2d 786 (1992).

31. In re Grand Jury Investigation, 918 F.2d 374 (3d Cir. 1990) reviews the
development of the clergy-communicant privilege in the federal courts. See
also Russell G. Donaldson, Annotation, Communications to Clergyman as
Privileged in Federal Proceedings, 118 A.L.R. Fed. 449 (1994) (Updated
Weekly West 2018).

32. J. Bentham, 4 Rationale of Judicial Evidence 588–91 (1st ed. 1827), as

quoted in John H. Wigmore, 8 Evidence § 2396 (McNaughten rev. 1961).

33. The quoted language is that of Proposed Fed. R. Evid. 509.

34. Proposed Fed. R. Evid. 510.

35. 353 U.S. 53, 59 (1957).

[Link]. at 60–61 (footnotes omitted) (emphasis added).

[Link]. at 62 (emphasis added).

38. 386 U.S. 300 (1967).

39. 373 U.S. 83 (1963).

40. 508 U.S. 165 (1993).

41. Couch v. United States, 409 U.S. 322, 335 (1973). There is no
“justification for such privilege where records relevant to income tax
returns are involved in criminal investigation or prosecution.”

42. 408 U.S. 665 (1972).

[Link]. at 667–99, 702 (footnotes omitted).

44. Schoen v. Schoen, 5 F.3d 1289, 1292 & n.5 (9th Cir. 1993) (reviews the
cases, by federal circuit, which have held that the privilege exists).

45. 294 A.2d 149, 156–57 (Md. App.), aff’d per curiam, 295 A.2d 212,
cert. denied, 411 U.S. 951 (1972).

1. 380 U.S. 400 (1965).

2. The United States Supreme Court has interpreted the Compulsory

Process Clause as giving criminal defendants the right “to the government’s
assistance in compelling the attendance of favorable witnesses at trial and
the right to put before a jury evidence that might influence the
determination of guilt.” Miriam Riskind, Can a Client Be Held Liable for
Attorney’s Misconduct? Let the Client Beware! 15 T. Marshall L. Rev. 103,
114 (1989–1990) (citing the Court’s opinion in Pennsylvania v. Ritchie, 480
U.S. 39 (1987)).

[Link]. at 115.

[Link]. at 103, citing Taylor v. Illinois, 484 U.S. 400 (1988).

[Link]. at 114, citing Pennsylvania v. Ritchie, 480 U.S. 39 (1987).

6. Fed. R. Evid. 611(c) addresses the subject of leading questions.

7. This hypothetical example is based on United States v. Copelin, 996 F.2d

379 (D.C. Cir. 1993).

[Link] Fed. R. Evid. 613(b), for the federal requirement.

9. United States v. Abel, 469 U.S. 45 (1984).

10. Fed. R. Evid. 701.

11. Holland v. Zollner, 102 Cal. 633, 638–39 (1894).

12. Massachusetts and New York still have the bar against lay testimony
concerning the sanity of the accused. Gorham v. Moor, 84 N.E. 436 (1908);
Matter of Estate of Vickery, 561 N.Y.S.2d 937 (N.Y. App. Div. 1990).
Neither Delaware nor Hawaii has specifically decided the question yet.

13. Fed. R. Evid. 702.

14. 509 U.S. 579 (1993).

15. 526 U.S. 137 (1999).

16. The Frye standard was derived from the case of Frye v. United States,
293 F. 1013 (D.C. Cir. 1923).

17. This report is available to read online at no charge: see

[Link] (last visited
3/28/09).

18. The summary is also accessible online:

[Link] record_id=12589&page=5 (and the
page following, last visited 3/28/09).

[Link] op ed piece of Professor Jennifer Mnookin, appearing in the Los

Angeles Times on February 19, 2009:
[Link]
2009feb19,0,[Link] (last visited 12/1/13).

20. Marshall v. State, 51 A.3d 641, 652 (Md. 2012).

[Link] AMERICAN BAR ASSOCIATION, Criminal Justice Forensic

Science Task Force, Report, ADOPTED BY THE HOUSE OF
DELEGATES, FEBRUARY 6, 2012.
22. Anna Gorman, LAPD Narcotics Analyst Erred; Botched Evidence
Raises Questions on Credibility. Public Defender’s Office Demands an
Accounting, Los Angeles Times, September 4, 2004, at B1.

23. Fed. R. Evid. 705, advisory committee’s note.

24. 567 U.S. 50 (2012).

[Link], for example, Fed. R. Evid. 704(b): In a criminal case, an expert

witness must not state an opinion about whether the defendant did or did
not have a mental state or condition that constitutes an element of the crime
charged or of a defense. Those matters are for the trier of fact alone.

26. State v. Thompkins, 891 So.2d 1151 (Fla. Ct. App. 2005).

27. State v. McNaught, 713 P.2d 457, 469 (Kan. 1986).

28. 523 U.S. 303 (1998).

29. Cassamassima v. Florida, 657 So.2d 906 (Florida Ct. App. 1995).

[Link] West Virginia v. Chambers, 459 S.E.2d 112, 114 (1995) (“reference
to an offer or refusal by a defendant to take a polygraph test is inadmissible
in criminal trials to the same extent that polygraph results are
inadmissible”).

31. Diana Walsh & Stacy Finz, The Peterson Trial, S.F. Chronicle, July 7,
2004, at B1.

32. Fed. R. Evid. 612 (a) (2).

1. Fed. R. Evid. 609(a)(1).

2. Fed. R. Evid. 609(a)(2).

3. Fed. R. Evid. 609, Conference Report, H.R. Fed. Rules of Evidence,
Conf. Rep. No. 1597, 93d Cong., 2d Sess., p. 9 (1974).

4. Fed. R. Evid. 803(21).

5. Fed. R. Evid. 613(b).

6. Miranda v. Arizona, 384 U.S. 436 (1966).

7. Missouri v. Seibert, 542 U.S. 600 (2004).

[Link] Harris v. New York, 401 U.S. 222 (1971).

[Link] United States v. Havens, 446 U.S. 620 (1980).

[Link] James v. Illinois, 493 U.S. 307 (1990).

[Link], e.g., United States v. Abel, 469 U.S. 45 (1984).

12. Fed. R. Evid. 608(a), advisory committee’s note.

13. In Tome v. United States, 513 U.S. 150, 156–57 (1995), the Supreme
Court held that, in order for prior consistent statement to qualify for use to
rebut a charge of recent fabrication or improper influence of a witness under
Fed. R. Evid. 801(d)(1)(B), there is a premotive temporal requirement.

14. Fed. R. Evid. 607.

15. Kastigar v. United States, 406 U.S. 441 (1972).

16. Murphy v. Waterfront Commission, 378 U.S. 52 (1964).

17. Griffin v. California, 380 U.S. 609 (1965).

18. Maryland v. King, 569 U.S. 435 (2013).

1. Fed. R. Evid. 801(c).

2. J.G. Phillmore, History and Principles of the Law of Evidence, 357

(1850), as cited and presented in Roger C. Park & Richard D. Friedman,
Evidence, Cases and Materials 193 (13th ed. 2019).

3. Fed. R. Evid. 801(b) defines a declarant as a person who makes a

statement.

4. 541 U.S. 36 (2004).

[Link]. at 68.

[Link]. at 51.

7. Davis v. Washington, 547 U.S. 813 (2006).

8. Davis v. Washington, 547 U.S. 813, 822 (2006).

9. 562 U.S. 344 (2011).

[Link]. at 367–70.

11.576 U.S. 237 (2015).

12. Giles v. California, 554 U.S. 353 (2008).

13. Fed. R. Evid. 801(a): “Statement” means a person’s oral assertion,

written assertion, or nonverbal conduct, if the person intended it as an
assertion.

[Link] Roger C. Park, I Didn’t Tell Them Anything About You: Implied
Assertions as Hearsay Under the Federal Rules of Evidence, 74 Minn. L.
Rev. 783 (1990).
15. This example was created by the late John Kaplan to illustrate the very
point made in the text in the form of a made-up case. This was included in
his casebook on evidence. The current version of the casebook is Park &
Friedman, supra, note 2, at p. 199.

16. 512 U.S. 594 (1994).

17. 527 U.S. 116 (1999).

18. 541 U.S. 36, 124 [Link]. 1354 (2004).

19. United States v. Napier, 518 F.2d 316 (9th Cir. 1975).

20. 508 A.2d 976 (Md. Ct. App. 1986).

21. People v. Washington, 459 P.2d 259, 263 (Cal. 1969).

22. 161 S.W.2d 474, 476 (Tex. Comm. App. 1942).

[Link]. at p. 477.

[Link] White v. Illinois, 502 U.S. 346, 355–56 (1992).

25. 145 U.S. 285 (1892).

26. The Hillmon case was extremely controversial, and the controversy
persisted for many decades in the courts. A few years ago, Professor Mimi
Wesson led a project to exhume the body interred at Oak Hill Cemetery in
Lawrence, Kansas, to see if modern science could end the controversy. In
February 2007, a professor of anthropology from the University of
Colorado issued a report asserting the body was, in fact, that of John
Hillmon. See [Link]
[[Link]

27. Fed. R. Evid. 803(3), advisory committee’s note.

28. State v. Krone, 897 P.2d 621, 625–26 (Ariz. 1995) (concurring opinion).

29. People v. James, 717 N.E.2d 1052, 1057–60 (N.Y. 1999).

[Link]. at 1060.

[Link]. at 1058 n. 4.

32. 544 F.2d 223 (9th Cir. 1976).

33. 148 P.2d 627 (Cal. 1944).

34. Fed. R. Evid. 803(4), advisory committee’s note.

35. Mattox v. United States, 156 U.S. 237 (1895).

36. Fed. R. Evid. 803(8)(A)(i).

37. Fed. R. Evid. 803(8)(A)(ii).

[Link].

39. Fed. R. Evid. 803(8)(A)(iii).

[Link] Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988).

[Link] Fed. R. Evid. 902(4).

[Link] State v. Bertul, 664 P.2d 1181 (Utah 1983), a seminal case cited by
many state courts. The court in Bertul cited and quoted from United States
v. Smith, 521 F.2d 957 (D.C. Cir. 1975), another oft-cited decision. With
respect to federal courts’ treatment, see Robert A. Brazener, Annotation,
Admissibility of Police Reports Under Federal Business Records Act
(Federal Rules of Evidence, Rule 803, and predecessor amendments, 31
A.L.R. Fed. 457, § 3 (West. 2021). With respect to state courts’ treatment,
see George L. Blum, Annotation, Admissibility in State Court Proceedings
of Police Reports as Business Records, 111 A.L.R.5th 1 (West 2018).

43. Compare United States v. Oates, 560 F.2d 45 (2d Cir. 1977) (held:
Custom’s Service chemist’s report that substance was cocaine not
admissible in criminal case under Fed. R. Evid. 803(8) or 803(6)), with
United States v. Rosa, 11 F.3d 315 (2d Cir. 1993) (held: autopsy report of
medical examiner not a law enforcement report within the Oates decision
and, therefore, it is admissible in criminal case).

44. Crawford v. Washington, 541 U.S. 36, 124 [Link]. 1354 (2004).

45. Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006).

46. Giles v. California, 554 U.S. 353 (2008).

[Link]. at 377.

48. Fed. R. Evid. 106.

49. Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).

50. Bullcoming v. New Mexico, 564 U.S. 647 (2011).

[Link]. at 2708.

52. 132 [Link]. 2221 (2012).

1. People v. Kelly, 157 Misc. 2d 554, 556, 598 N.Y.S.2d 423, 425 (Sup. Ct.
1993), citing (Richardson on Evidence) § 540.

2. Gladden v. Unsworth, 396 F.2d 373, 376 (9th Cir. 1968), citing Jones v.
United States, 296 F.2d 398, 402 (1962).
3. McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States,
354 U.S. 449 (1957).

4. 384 U.S. 436 (1966).

5. 322 U.S. 143 (1944).

6. 360 U.S. 315 (1959).

7. Gideon v. Wainwright, 372 U.S. 335 (1963).

8. Argersinger v. Hamlin, 407 U.S. 25 (1972).

9. 378 U.S. 478 (1964).

10. 377 U.S. 201 (1964).

11. 384 U.S. 436 (1966).

12. 530 U.S. 428 (2000).

13. The requirement that confessions be voluntary is predicated on a

complex of values. See Joshua Dressler, Understanding Criminal Procedure
§ 22.02 (2), at p. 428 (8th ed. 2021) citing Blackburn v. Alabama, 361 U.S.
199, 207 (1960).

14. Spano v. New York, 360 U.S. 315, 320 (1959).

[Link] Culombe v. Connecticut, 367 U.S. 568, 606 (1961).

16. 479 U.S. 157 (1986).

17. 297 U.S. 278 (1936).

18. 322 U.S. 143 (1944).

[Link] Joshua Dressler, Understanding Criminal Procedure § 22.02[B][34]
[d], at pp. 36–37 (8th ed. 2021).

20. 360 U.S. 315 (1959).

21. 384 U.S. 436 (1966).

[Link]. at 444.

[Link].

24. 378 U.S. 478 (1964).

25. 564 U.S. 261 (2011).

26. 394 U.S. 324 (1969).

27. 429 U.S. 492 (1977).

28. 446 U.S. 291 (1980).

[Link]. at 300–301.

[Link]. footnote 6 omitted.

[Link].

[Link]. at 294–95.

[Link].

[Link]. at 302, n. 8.

35. 430 U.S. 387 (1987).

36. 384 U.S. 436, 444.

[Link]. at 475.

38. Colorado v. Connelly, 479 U.S. 157 (1986).

39. 441 U.S. 369 (1979).

40. Colorado v. Spring, 479 U.S. 564 (1987).

41. Moran v. Burbine, 475 U.S. 412 (1986).

42. 560 U.S. 370 (2010).

43. 570 U.S. 178 (2013).

44. 380 U.S. 609 (1965).

45. 384 U.S. 436, at 473–74.

[Link]. at 474.

47. 423 U.S. 96 (1975).

48. 451 U.S. 477 (1981).

[Link]. at 484–85.

50. Minnick v. Mississippi, 498 U.S. 146 (1990).

51. 559 U.S. 98 (2010).

52. 498 U.S. 146 (1990).

53. 530 U.S. 428 (2000).

[Link]. at 438–39.

55. 467 U.S. 649 (1984).

56. 496 U.S. 582 (1990).

[Link]. at 601.

58. 496 U.S. 292 (1990).

[Link]. at 300.

60. 496 U.S. 292 (1990).

[Link]. at 297.

62. 423 U.S. 96 (1975).

63. Spano v. New York, 360 U.S. 315 (1959).

64. 417 U.S. 433 (1974).

65. 530 U.S. 428 (2000).

66. 417 U.S. 433 (1974).

67. 470 U.S. 298 (1985).

[Link]. at 318.

69. Joshua Dressler, Understanding Criminal Procedure § 24.06 [C][1], at

pp. 485–87 (8th ed. 2021).
70. Dickerson, 530 U.S. 428, at 441 (2000), as quoted in Dressler, Id. at §
24.11[A], p. 511 text accompanying n. 200.

71. 542 U.S. 630 (2004).

72. Missouri v. Seibert, 542 U.S. 600 (2004).

[Link].

74. Harris v. New York, 401 U.S. 222 (1971).

75. United States v. Wade, 388 U.S. 218, 227 (1967).

76. Kirby v. Illinois, 406 U.S. 682, 689 (1972).

77. 377 U.S. 201 (1964).

[Link].

[Link]. at 206.

[Link] Patterson v. Illinois, 487 U.S. 285 (1988).

81. Rhode Island v. Innis, 446 U.S. 291 (1980).

82. 447 U.S. 264 (1980).

83. Patterson v. Illinois, 487 U.S. 285 (1988).

84. Montejo v. Louisiana, 556 U.S. 778 (2009), overruling Michigan v.

Jackson, 475 U.S. 625 (1986).

85. 304 U.S. 458 (1938).

86. 487 U.S. 285 (1988).

[Link] Brown v. Illinois, 422 U.S. 590, 603 (1975).

88. 422 U.S. 590 (1975).

89. 384 U.S. 436, 481 (1966).

90. 378 U.S. 368 (1964).

91. Lego v. Twomey, 404 U.S. 477 (1972).

[Link] Arizona v. Fulminante, 499 U.S. 279 (1991).

93. Bruton v. United States, 391 U.S. 123 (1968).

1. Miranda v. Arizona, 384 U.S. 436 (1966).

2. 232 U.S. 383 (1914).

3. 367 U.S. 643 (1961).

4. People v. Defore, 150 N.E. 585, 587 (1926) (Justice Cardozo, criticizing
the exclusionary rule of the Weeks case).

5. 251 U.S. 385 (1920).

6. 371 U.S. 471 (1963).

7. 579 U.S. 232 (2016).

8. 547 U.S. 586 (2006).

9. 467 U.S. 431 (1984).

[Link]. at 444.
11. 364 U.S. 206 (1960).

12. Mapp v. Ohio, 367 U.S. 643, 655 (1961).

13. 468 U.S. 897 (1984).

[Link]. at 926.

15. Joshua Dressler, ­Understanding C

­ riminal ­Procedure § 20.06 [B][1], at p.
388 n.149 (8th ed. 2021).

[Link] Illinois v. Krull, 480 U.S. 340 (1987), where the United States
Supreme Court held the good faith exception applicable to an unlawful
search and seizure carried out in objectively reasonable reliance upon a
state statute later declared unconstitutional.

17. Joshua Dressler, Understanding Criminal Procedure § 21.09 [A], at p.

409 (3d ed. 2000).

[Link] Arizona v. Evans, 514 U.S. 1 (1995).

19. Herring v. United States, 555 U.S. 135 (2009).

20. 564 U.S. 229 (2011).

21. 555 U.S. 135 at 143–44.

22. 480 U.S. 79 (1987).

23. 540 U.S. 551 (2004).

24. 389 U.S. 347 (1967).

[Link]. at 351–52 (emphasis added).

26. 508 U.S. 366 (1993).

27. 385 U.S. 293 (1967).

28. 401 U.S. 745 (1971).

29. ___ U.S. ___, 138 S. Cy. 2206 (2018).

30. 265 U.S. 57 (1924).

31. 466 U.S. 170 (1984).

32. ___ U.S, ___, 138 S. Ct. 1663 (2018).

33. 442 U.S. 735 (1979).

34. 425 U.S. 435 (1976)

35. 460 U.S. 276 (1983).

36. 468 U.S. 705 (1984).

37. 533 U.S. 27 (2001).

38. 565 U.S. 400 (2012).

39. The description of Jones v. United States is derived from Thomkovicz

& White, Criminal Procedure: Constitutional Constraints Upon
Investigation and Proof 33–35 (9th ed. 2021).

40. 569 U.S. 1 (2013).

41. 575 U.S. 306 (2015).

42. State v. Grady, 817 S.E. 2d 18 (Ct. App. N.C. 2018).

43. 476 U.S. 207 (1986).

44. 488 U.S. 445 (1989).

45. 466 U.S. 109 (1984).

46. 462 U.S. 696 (1983).

47. 543 U.S. 405 (2005).

[Link]. at 409–10.

49. 568 U.S. 237 (2013).

50. 575 U.S. 348 (2015).

[Link]. at 350.

52. 569 U.S. 1 (2013).

53. 486 U.S. 35 (1988).

54. United States v. Jacobsen, 466 U.S. 109, 113 (1984).

55. United States v. Mendenhall, 446 U.S. 544, 553–54 (1980).

56. 501 U.S. 429 (1991).

[Link]. at 436.

58. 499 U.S. 621, 626 (1991).

59. 536 U.S. 194 (2002).

60. Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971).

61. James J. Tomkovicz & Welsh S. White, Criminal Procedure: ­-

Constitutional Constraints upon Investigation and Proof 80 (9th ed. 2021)
citing and quoting United States v. Garza-Hernandez, 623 F.2d 496 (7th Cir.
1980) (quoting ­Brinegar v. United States, 338 U.S. 160, 174–76 (1949)
(emphasis added by Tomkovicz and White).

62. Illinois v. Gates, 462 U.S. 213, 238 (1983).

[Link]. at 235.

64. 540 U.S. 366 (2003).

65. 358 U.S. 307 (1959).

66. 423 U.S. 411 (1976).

67. 532 U.S. 318 (2001).

68. 462 U.S. 213 (1983).

69. 378 U.S. 108 (1964).

70. 393 U.S. 410 (1969).

71. Gates, 462 U.S. at 238.

[Link], 462 U.S. at 245.

73. 574 U.S. 54 (2014).

74. 568 U.S. 237 (2013).

75. 480 U.S. 79 (1987).

76. 496 U.S. 128 (1990).

77. Gooding v. United States, 416 U.S. 430 (1974).

78. John M. Burkoff, Search WarrantLaw Deskbook (St. Paul, MN:

Thomson Reuters). Available online via Westlaw:
[Link]
econdarySources/CriminalLawTextsTreatises/SearchWarrantLawDeskbook
?transitionType=Default&contextData=([Link])&VR=3.0&RS=cblt1.0.

[Link].

80. See Josiah Bates, Breonna Taylor’s Killing Sparked Restrictions on No-
Knock Warrants. But Experts Say Those Rules Don’t Actually Change Much
Time, March 11, 2022, [Link]
warrants/ (lasted visited 3/25/2022).

81. 526 U.S. 603 (1999).

[Link]. at 614.

83. 514 U.S. 927 (1995).

[Link]. at 930.

85. 520 U.S. 385 (1997).

86. 547 U.S. 586 (2006).

87. 523 U.S. 65 (1998).

88. 547 U.S. 90 (2006).

89. 438 U.S. 154 (1978).

90. 395 U.S. 752 (1969).

91. 414 U.S. 218 (1973).

92. 525 U.S. 113 (1998).

93. Chimel v. California, 395 U.S. 752, 763 (1969).

[Link]. at 763.

95. Maryland v. Buie, 494 U.S. 325, 334 (1990).

96. 415 U.S. 800 (1980).

[Link]. at 803.

98. 494 U.S. 325 (1990).

[Link]. at 327.

[Link]. at 334.

[Link] New York v. Belton, 453 U.S. 454 (1981).

102. Arizona v. Gant, 556 U.S. 332 (2009).

103. 453 U.S. 454 (1981).

104. 541 U.S. 615 (2004).

105. Arizona v. Gant, 556 U.S. 332 (2009).

106. Riley v. California, 574 U.S. 373 (2014).

107. 384 U.S. 757 (1966).

108. 569 U.S. 141 (2013).

109. Id. at 144.

110. 579 U.S. 438 (2016).

111. Carroll v. United States, 267 U.S. 132, 153–54 (1925).

112. Cardwell v. Lewis, 417 U.S. 583 (1974).

113. Cady v. Dombroski, 413 U.S. 433, 441 (1973).

114. ___ U.S, ___, 138 S. Ct. 1663 (2018).

115. 526 U.S. 599 (1999).

116. Texas v. White, 423 U.S. 67, 68 (1975).

117. Chambers v. Maroney, 399 U.S. 42 (1973).

118. 471 U.S. 386 (1985).

119. 526 U.S. 295, 302 (1999).

120. 528 U.S. 11 (1999).

121. 412 U.S. 218 (1973).

122. 519 U.S. 33 (1996).

123. 536 U.S. 194 (2002).

124. 501 U.S. 429 (1991).

125. United States v. Matlock, 415 U.S. 164, 172 n.7 (1974).

126. 547 U.S. 103 (2006).

127. United States v. Matlock, 415 U.S. 164, 172 n.7 (1974).

128. 497 U.S. 177 (1990).

129. 495 U.S. 91, 100 (1990).

130. Warden v. Hayden, 387 U.S. 294 (1967).

131. 569 U.S. 141 (2013).

132. 399 U.S. 30 (1970).

133. 531 U.S. 326 (2001).

[Link] Arizona v. Hicks, 480 U.S. 321 (1987).

135. 387 U.S. 294 (1967).

[Link]. at 298.

[Link]. at 299.

138. 466 U.S. 740 (1984).

139. 529 U.S. 334 (2000).

140. 480 U.S. 321 (1987).

141. 392 U.S. 1 (1968).

142. Camara v. Municipal Court, 387 U.S. 523, 536–37 (1967).

143. 392 U.S. 1, at 30.

144. 528 U.S. 119 (2000).

145. 534 U.S. 266 (2002).

146. 462 U.S. 213 (1983).

147. 496 U.S. 325 (1990).

148. 529 U.S. 266 (2000).

149. 542 U.S. 177 (2004).

150. United States v. Place, 462 U.S. 696, 710 (1983).

151. United States v. Montoya de H

­ ernandez, 473 U.S. 551, 532 (1985).

152. Hayes v. Florida, 470 U.S. 811 (1985).

153. 452 U.S. 692 (1981).

154. 568 U.S, 186 (2013)

155. 470 U.S. 811 (1985).

156. United States v. Sharpe, 470 U.S. 675, 687 (1985).

[Link].
158. 508 U.S. 366 (1993).

159. 444 U.S. 85 (1979).

160. Maryland v. Buie, 494 U.S. 325 (1990).

161. 469 U.S. 325 (1985).

162. Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990).

163. United States v. Martinez-Fuerte, 429 U.S. 543 (1976).

164. Griffen v. Wisconsin, 483 U.S. 868 (1987).

165. 534 U.S. 112 (2001).

166. United States v. Knights, 534 U.S. 112 (2001).

167. Skinner v. Railway Labor Executives’ Assn, 489 U.S. 602 (1989).

168. National Treasury Employees Union v. Von Raab, 489 U.S. 656
(1989).

169. Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).

170. 536 U.S. 822 (2002).

171. 520 U.S. 305 (1997).

172. 532 U.S. 67 (2001).

173. 531 U.S. 32 (2001).

174. 439 U.S. 128 (1978).

175. 448 U.S. 98 (1980).

176. 495 U.S. 91 (1990).

177. 525 U.S. 83 (1998).

1. United States v. Wade, 388 U.S. 218 (1967) (footnote omitted).

2. United States v. Wade, 388 U.S. 218 (1967); Gilbert v. California, 388
U.S. 263 (1967); Stovall v. Denno, 388 U.S. 293 (1967).

3. Scott v. Illinois, 440 U.S. 367 (1979), interpreting Argersinger v. Hamlin,

407 U.S. 25 (1972), and Gideon v. Wainwright, 372 U.S. 335 (1963).

4. United States v. Wade, 388 U.S. 218, 225 (1967), quoting Powell v.
Alabama, 287 U.S. 45, 57 & 69 (1932).

5. Massiah v. United States, 377 U.S. 201 (1964).

6. 384 U.S. 436 (1966).

7. United States v. Wade, 388 U.S. 218 (1967).

8. United States v. Ash, 413 U.S. 300, 316 (1973).

9. Wade, 388 U.S. at 226.

10. 388 U.S. 218 (1967).

[Link]. at 228.

[Link]. at 236–37.

[Link]. at 240.
14. 406 U.S. 682 (1972).

[Link]. at 690.

16. United States v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992).

17. 388 U.S. 263 (1967).

[Link]. at 272–73, quoting Wong Sun v. United States, 371 U.S. 471, 488
(1963).

19. 388 U.S. 293 (1967).

[Link].

21. 409 U.S. 188 (1972).

[Link]. at 199–200.

[Link]. at 200.

24. 390 U.S. 377 (1968).

25. 432 U.S. 98 (1977).

[Link].

[Link]. at 100.

[Link]. at 114.

[Link].

[Link], e.g., Herrera v. Collins, 904 F.2d 944 (5th Cir. 1990).
31. United States v. Bagley, 772 F.2d 482, 493 (9th Cir. 1985), cert. denied,
475 U.S. 1023 (1986).

32. United States v. Russell, 532 F.2d 1063 (6th Cir. 1976).

33. United States v. Lewis, 547 F.2d 1030, 1035 (8th Cir. 1976), cert.
denied, 429 U.S. 1111 (1977).

34. United States v. Jakobetz, 955 F.2d 786, 803 (2d Cir. 1992).

35. Salam v. Lockhart, 874 F.2d 525, 528 (8th Cir. 1989), cert. denied, 493
U.S. 898, 1989.

36. Styers v. Smith, 659 F.2d 293 (2nd Cir. 1981).

37. Passman v. Blackburn, 652 F.2d 559 (5th Cir. 1981), cert. denied, 455
U.S. 1022 (1982).

[Link]. at 570.

39. United States v. Dunbar, 767 F.2d 72, 73 (3d Cir. 1985).

40. Neil v. Biggers, 409 U.S. 188 (1972).

41. United States v. Damsky, 740 F.2d 134, 140 (2d. Cir.), cert. denied, 469
U.S. 918 (1984).

42. United States v. Donahue, 948 F.2d 438 (8th Cir. 1991), cert. denied,
503 U.S. 976 (1992).

[Link]. See also Herrera v. Collins, 904 F.2d 944, 948 (5th Cir.) (witness saw
defendant in headlights for about fourteen seconds at fifteen feet), cert.
denied, 498 U.S. 925 (1990); United States v. Goodman, 797 F.2d 468 (7th
Cir. 1986) (witness saw defendant for fifteen to twenty seconds under good
lighting at close range); United States v. Serna, 799 F.2d 842, 852 (2nd Cir.
1986) (defendant within two to three feet of witness for thirty minutes),
cert. denied, 481 U.S. 1013 (1987).

44. Mata v. Sumner, 696 F.2d 1244, 1251–52 (9th Cir.), vacated on other
grounds, 464 U.S. 957 (1983).

45. Valde v. Schmer, 724 F.2d 249 (1st Cir. 1984).

[Link]. at 251.

47. Manson v. Brathwaite, 432 U.S. 98, 115 (1977).

48. Valde, 724 F.2d at 252 (1st Cir. 1984).

49. 432 U.S. 98, at 115.

50. United States v. Jarrad, 754 F.2d 1451, 1455 (9th Cir.), cert. denied, 474
U.S. 830 (1985).

51. United States v. Monsour, 893 F.2d 126, 128 (6th Cir. 1990).

52. Simmons, 390 U.S. at 383–84.

53. Biggers, 409 U.S. 188, 201 (1972).

54. United States v. Rundell, 858 F.2d 425 (8th Cir. 1988).

55. United States v. Marchand, 564 F.2d 983, 996 (2nd Cir. 1977), cert.
denied, 434 U.S. 1015. (1978).

56. The guide can be found on the Web at [Link] In

2003, the National Institute of Justice republished the guide and added a
multimedia training package. The package contains a slide presentation,
audio and video clips of interviews and lineups, and exercises designed to
enhance learning and make training sessions more interactive and visually
interesting for law enforcement students. The 2003 guide can be found on
the Web at [Link] In a DOJ
Memo published on January 6, 2017, the department stated that “research
and practice have both evolved significantly since then.” The memo goes
on to highlight a summary of the “developments in the field of eyewitness
identification.” See the full report:
[Link] (last visited 3/26/2022).

57. See NAS, Identifying the Culprit: Assessing Eyewitness Identification,

[Link]
[Link] (last visited 6/1/2018).

58. The memorandum and report are available at

[Link] (last visited 6/1/2018.

1. 1A Fed. Jury Prac. & Instr. § 12.04 (6th ed. 2018).

2. Holland v. United States, 348 U.S. 121 (1954).

3. 1A Fed. Jury Prac. & Instr. § 12.04 (6th ed. 2018).

4. Johnson v. State, 872 P.2d 93, 96–97 (Wyo. 1994), quoting Thompson v.
United States, 144 F. 14, 18 (1st Cir.1906).

5. 485 U.S. 681 (1988).

6. 7 Cal. 4th 380 (1994).

7. 14 Cal. 2d 403 (1939).

8. Edward J. Imwinkelried, The Dispute over the Doctrine of Chances, 7

Crim. Just. 16, 18 (1992 Fall).

9. 11 Crim. App. 229 (1915).

10. 502 U.S. 62 (1991).

11. Commonwealth v. Knapp, Sup. Jud. Ct. of Mass., 1830, VII Am. St. Tr.
395, 516, as cited and quoted in Roger C. Park & Richard D. Friedman,
Evidence, Cases and Materials 221–22 (12th ed. 2013).

12. Michaelson v. United States, 335 U.S. 469, n. 16 citing People v.

Laudero, 85 N.E. 132 (N.Y. 1908) (1948).

13. 179 F.3d 889 (10th Cir.), cert. denied 528 U.S. 944 (1999).

14. United States v. Withorn, 204 F.3d 790 (8th Cir. 2000).

[Link].

16. 3 Conn. App. 374, 489 A.2d 386, cert. denied 196 Conn. 803, 492 A.2d
1239 (1985).

17. 488 U.S. 227 (1988).

1. 241 F.R.D. 534 (D. Md. 2007).

2. Fed. R. Evid. 1001(4), advisory committee note (original note), the Rule
is now 1001(e).

[Link], e.g., State v. Williams, 797 S.W.2d 734 (Mo. Ct. App. 1990).

4. Lawson v. State, 803 N.E.2d 237 (Int. App. 2004), citing Charles T.
McCormick, Evidence § 234 (4th ed. 1992).

5. 454 F.2d 809 (5th Cir. 1972).

6. People v. Riser, 305 P.2d 1 (Cal.1956) (production of prosecution witness

statements during trial). See also People v. Lopez, 384 P.2d 16 (Cal.1963)
(pretrial discovery of government witness identity).
7. American Bar Ass’n, Project on Criminal Justice Standards, Standards
Relating to Discovery and Procedure Before Trial (Approved Draft, 1970).

8. C. Clennon, Pre-Trial Discovery of Witness Lists: A Modest Proposal to

Improve the Administration of Criminal Justice in the Superior Court of the
District of Columbia, 38 Cath. U.L. Rev. 641, 651–52 nn.57–59 (1989).

9. 373 U.S. 83 (1963).

10. 18 U.S.C. § 3500.

11. 373 U.S. 83 (1963).

[Link]. at 87.

13. C. Clennon, Pre-Trial Discovery of Witness Lists: A Modest Proposal to

Improve the Administration of Criminal Justice in the Superior Court of the
District of Columbia, 38 Cath. U.L. Rev. 641, 656 (1989), citing United
States v. Bagley, 473 U.S. 667, 682 (1985) (quoting Strickland v.
Washington, 466 U.S. 668, 694 (1984)).

14. 540 U.S. 668 (2004).

15. Fed. R. Crim. P. 16 (a)(1)(B).

16. Jencks v. United States, 353 U.S. 657 (1957).

17. 18 U.S.C. § 3500 (a).

18. 353 U.S. at 681–82.

[Link], e.g., Fla. Crim. P. Rule 3. 220 (2004). R.I. Super. Ct. R. Crim. P.
Rule 16(g)(1) (2004). Tenn. Davidson County Local Rule; Rhode Island
Superior Ct. Rules of Crim. Pro.; Fla. R. Crim. P.
20. N.J. R. Crim. Rule 3:13–3 (2001).

21. Minn. R. Crim. P. Rule 9.01 (2004).

22. C. Clennon, Pre-Trial Discovery of Witness Lists: A Modest Proposal to

Improve the Administration of Criminal Justice in the Superior Court of the
District of Columbia, 38 Cath. U.L. Rev. 641, 657–58 nn.96–98 (1989).

23. E.g., R.I. Super. R. Crim. P. 16; N.J. Court Rules, R. 3:13–3.

24.E.g., Fla. R. Crim. P. 3.220; Va. Sup. Ct. R 3A:11.

25. United States v. Nobles, 422 U.S. 225 (1975).

26. Williams v. Florida, 399 U.S. 78 (1970).

27. 543 F.2d 1247 (9th Cir. 1976).

28. 373 U.S. 83 (1963).

29. 488 U.S. 51 (1988).

[Link], e.g., United States v. Waloke, 962 F.2d 824, 829 (8th Cir. 1992).

2. State v. Thompson, 402 S.E.2d 386, 394 (N.C. 1991), quoting State v.
Murphy, 365 S.E.2d 615, 617 (N.C. 1988).

[Link]. at 394. See generally M.C. Dransfield, Annotation, Admissibility of

Photograph of Corpse in Prosecution for Homicide or Civil Action for
Causing Death, 73 A.L.R. 2d 769 (1960 & Supp. 2018) (a collection of
cases, the majority of which admit gruesome photographs of victims’
corpses).

[Link] 2 Handbook of Fed. Evid. § 401:7, text accompanying n.27 (8th ed.
2018).
5. People v. Sims, 853 P.2d 992, 1020 (Cal. 1993).

6. State v. Lefferty, 749 P.2d 1239, 1257 (Utah 1988), citing State v. Garcia,
663 P.2d 60, 64 (Utah 1983).

7. Met v. State, 388 P.3d 447, 469 (Utah 2016).

8. Danny R. Veilleux, Admissibility in Homicide Prosecution of Allegedly

Gruesome or Inflammatory Visual Recording of Crime Scene, 37 A.L.R. 5th
515 (1996 & 2018 Supp.).

9. Annotation, Closed-Circuit Television Witness Examination, 61 A.L.R.

4th 1155 (1988 & Supp. 2004).

[Link] People v. O’Brien, 61 Cal. App.3d 766, 780 (1976); State v. Cintron,
665 A.2d 95 (Conn. App. 1995); Harper v. State, 357 S.E.2d 117 (Ga. App.
1987).

[Link], e.g., Cal. Penal Code § 1119, Fl. St. at § 918.05.

[Link] People v. Mayfield, 928 P.2d 485, 525 (Cal. 1997).

[Link] Snyder v. Massachusetts, 291 U.S. 97 (1934) (defendant’s due

process rights are not violated if he or she is absent during the jury’s
viewing of the crime scene); Amazon v. State, 487 So. 2d 8, 10 (Fla. 1986);
Valdez v. United States, 244 U.S. 432 (1917) (defendant’s Sixth
Amendment right to confrontation is not violated if he or she is absent
during the jury’s viewing of the crime scene if such rights were voluntarily
waived).

[Link], e.g., Arnold v. S. Carolina, 467 U.S. 1265 (1984).

[Link] Woodards v. Cardwell, 430 F.2d 978, 982 (6th Cir. 1970), cert.
denied, 401 U.S. 911 (1971); State v. Landrum, 559 N.E.2d 710, 724 (Oh.
1990); People v. Hardy 825 P.2d 781, 836 (Cal. 1992).
1. 573 U.S. 373, 385 (2014).

2. 2 Handbook of Fed. Evid. § 401:7, text accompanying n.27 (8th ed.

2018).

3. People v. O.J. Simpson, 1995 WL 350931, p. 15–16 (Cal. Super. Trans.,

June 6, 1995). Westlaw has deleted this database, so this document is no
longer available.

4. Los Angeles Times, December 23, 1993, p. 1, 1993 WL. 2239535.

5. The source of this information regarding the equipment and software

used in the O.J. Simpson trial was Adam Matthew Ormond, Partner, Trial
Presentation Technologies.

1. What are the methods used to notify a witness to appear in court?

2. What is appropriate clothing for law enforcement professionals to wear

to court?

3. Identify the persons that the law enforcement witness should not speak to
during recesses.

4. Explain what a law enforcement witness should do while testifying with

respect to objections.

5. State what a law enforcement witness should do when he or she does not
remember the answer to a question asked.

6. Explain what a law enforcement witness should do when asked an

argumentative question on cross-examination that the defense attorney
insists should be answered yes or no.

1 “Hearsay exclusion” means excluded from the hearsay rule by definition.

2“Hearsay exemption” means exempted from the hearsay rule by FRE
801(d)(1) or (2).

3“Hearsay exception” means that although the evidence is hearsay, it is

admissible within a specific exception to the hearsay rule.

3“Hearsay exception” means that although the evidence is hearsay, it is

admissible within a specific exception to the hearsay rule.

1But only if requested by the Defendant and ordered by the Court

2Upon written request by the Defendant

3Although the general rule is disclosed, Rule 8(b)(6) seems to suggest that
the witness list could be disclosed if the Court compels it.

4 Although the general rule is disclosed, Rule 8(b)(6) seems to suggest that
the witness list could be disclosed if the Court compels it.

5See Rule 6(k)(2) which allows for the secrecy of the grand jury to be
broken only in specific instances. See Tenn. R. Crim. P. 6.

6 Texas Code of Criminal Procedure Art. 20A.205 states, in part, “The court
may order disclosure of the information if the defendant shows a
particularized need.” (see Tex. Code Crim. Proc. Ann. art. 20A.205 (West))
(last visited 3/31/2022.

1 See also California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed.
2d 413 (1984), particularly pages 488-89 and footnote 8 which allow for
notes to be destroyed as long as not done in bad faith or a calculated effort
to prevent disclosure.

2 Although we strongly disapprove the routine destruction of discoverable

material, we have only recently begun to consider the severe sanction of
remand and retrial without permitting the testimony of the police witness
whose notes have intentionally been destroyed.” State v. Vessichio, 197
Conn. 644, 661, 500 A.2d 1311, 1322 (1985). In cases where investigative
notes have been “intentionally destroyed,” the Court must perform a
balancing test and weigh the amount of prejudice to the defendant against
the Government’s failure to make disclosable material available to the
defense. Id.

3 Wainer v. State, 869 A.2d 328 (Del. 2005). See also the “Deberry” test
which stated, in part, “We fully endorse this view, and hold that the State's
duty to disclose evidence includes a duty to preserve it as well. The
obligation to preserve evidence is rooted in the due process provisions of
the fourteenth amendment to the United States Constitution and the
Delaware Constitution, article I, section 7. The duty of preservation extends
not only to the Attorney General's office, but all investigative agencies,
local, county, and state.” Deberry v. State, 457 A.2d 744, 751–52 (Del.
1983)

4 Lyles v. United States, 879 A.2d 979, 984 (D.C. 2005). The Court held
that the investigative notes taken by a Maryland police officer were never in
the possession of the government because Maryland and D.C. are
independent jurisdictions and local law enforcement agencies outside the
District of Columbia are “not part of the prosecutorial arm” of the U.S. and
therefore the Jencks Act does not apply here.

5 AlthoughIdaho does not have a specific destruction policy, the legislature

does exempt “investigatory records of law enforcement” from disclosure.
See ID LEGIS 182 (2022), 2022 Idaho Laws Ch. 182 (H.B. 658).

6The case should read Com. v. Collazo, 34 Mass. App. Ct. 79, 607 N.E.2d
418 (1993); in the textbook, the case name currently reads as Com. V. Coll.

7State v. W.B., 205 N.J. 588, 607, 17 A.3d 187 (2011). Additionally, the
Court in State v. W.B. also points out that NJ R CR Rule 3:13-3 entitles the
defendant to obtain a copy of discovery from the prosecutor and a police
officer’s notes are included in the umbrella of discovery.
8 People v. Samuels, 289 A.D.2d 514, 738 N.Y.S.2d 54 (2001) holding that
a missing police officer’s log book did not prejudice the defendant. People
v. Monahan, 237 A.D.2d 623, 655 N.Y.S.2d 1011 (1997) holding that
defendant failed to establish the the destruction of the tape, which occurred
prior to his request for it, was the result of lack of due care and tha the was
prejudiced by it. See also the concurrence in People v. Rosario, 9 N.Y.2d
286, 173 N.E.2d 881 (1961) which established the “Rosario” rule
referenced in Samuels and Monahan.

9United States v. Wirth, No. CIV. 11-256 ADM/JJK, 2012 WL 1580991 (D.
Minn. May 4, 2012).

10 See Section 17-1-40(B)(1)(a) “Expungement; Retention of Certain

Information by Law Enforcement or Prosecution Agencies.” (S.C. Code
Ann. § 17-1-40).

11 Although there is no case law on the subject, it appears from this website
that law enforcement agencies are supposed to retain records for varying
amounts of time depending upon the type of record and also the type of
action (misdemeanor, felony, internal investigation, etc.). See
[Link] (last
visited 4/01/2022).

12 [Link]

13 Specifically for Virginia Beach, VA – and specifically for electronic data

(i.e. in-car dash cam video, photographs, etc.) – the photograph or recording
that is “used for investigatory purposes or used in court as evidence” must
be retained for 75 years. See
[Link]
%20Electronic%20Data%[Link] (last visited 4/01/2022).

14 See §8.2 of “Law Enforcement Records Retention Schedule” which may

impact future cases for Washington state:
[Link]
enforcement-records-retention-schedule-v.8.0-(february-2022).pdf (last
visited 4/01/2022).

15 NOTE: State v. Noble was reversed, in part, on an unrelated issue

stemming from the same case. State v. Noble, 2002 WI 64, 253 Wis. 2d 206,
646 N.W.2d 38.

10. Id. at 1410.

11. 141 [Link]. 1547, 1551 (2021).

12. Id. at 1582 n. 6.

15. Batson v. Kentucky, 476 U.S. 79 (1986).

16. Georgia v. McCollum, 505 U.S. 42 (1992).

17. Batson v. Kentucky, 476 U.S. 79, 89 (1986).